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GOVDOC 
Y4.J89/2: 

S.HRG.  /^^'/(PjlX 
L  I  S.  Hrg.  103-1031,  Pt.  2 

^' ^    ^.uilnRMATION  HEARINGS 


ON  FEDERAL  APPOINTMENTS 

DEC  I  9  1995   ■ 

HEARINGS 


'  rsT"^':'' 


BEFORE  THE 

COMMITTEE  ON  THE  JUDICIARY 
UNITED  STATES  SENATE 

ONE  HUNDRED  THIRD  CONGRESS 

SECOND  SESSION 

ON 

CONFIRMATIONS  OF  APPOINTEES  TO  THE  FEDERAL  JUDICIARY 


JANUARY  27;  FEBRUARY  3,  24;  MARCH  2,  3,  10,  AND  16,  1994 


Part  2 


Serial  No.  J-103-28 


Printed  for  the  use  of  the  Committee  on  the  Judicisiry 


/^^^2-A 


S.  Hrg.  103-1031,  Pt.  2 

CONHRMATION  HEARINGS 
ON  FEDERAL  APPOINTMENTS 


HEARINGS 

BEFORE  THE 

COMMITTEE  ON  THE  JUDICIARY 
UNITED  STATES  SENATE 

ONE  HUNDRED  THIRD  CONGRESS 

SECOND  SESSION 

ON 

CONFIRMATIONS  OF  APPOINTEES  TO  THE  FEDERAL  JUDICIARY 


JANUARY  27;  FEBRUARY  3,  24;  MARCH  2,  3,  10,  AND  16,  1994 


Part  2 


Serial  No.  J-103-28 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


GOVERNMEinr  iX)CUIIENTS  OEPARTMEWT ' 
^RECEIVED 


FEB  2  4  2000 


1 


U.S.   GOVERNMENT  PRINTING  OFFICE 
90-550  WASHINGTON  :  1995 


For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 
ISBN   0-16-047739-5 


COMMITTEE  ON  THE  JUDICIARY 

JOSEPH  R.  BIDEN,  Jr.,  Delaware,  Chairman 

EDWARD  M.  KENNEDY,  Massachusetts  ORRIN  G.  HATCH,  Utah 

HOWARD  M.  METZENBAUM,  Ohio  STROM  THURMOND,  South  Carohna 

DENNIS  DeCONCINI,  Arizona  ALAN  K.  SIMPSON,  Wyoming 

PATRICK  J.  LEAHY,  Vermont  CHARLES  E.  GRASSLEY,  Iowa 

HOWELL  HEFLIN,  Alabama  ARLEN  SPECTER,  Pennsylvania 

PAUL  SIMON,  IlUnois  HANK  BROWN,  Colorado 

HERBERT  KOHL,  Wisconsin  WILLIAM  S.  COHEN,  Maine 

DIANNE  FEINSTEIN,  CaUfomia  LARRY  PRESSLER,  South  Dakota 
CAROL  MOSELEY-BRAUN,  IlUnois 

Cynthia  C.  Hogan,  Chief  Counsel 

Catherine  M.  Russell,  Staff  Director 

Mark  R.  Disler,  Minority  Staff  Director 

Sharon  Prost,  Minority  Chief  Counsel 


(II) 


YhAheu  0IJ6US  mri^G^^   ^ 

'«?WTflA^}0  8ri«3wiitXJU  V^iiii^^^^'-' 

*    lOOS  i-\   I         I 


CONTENTS 


HEARING  DATES 

Page 

Thursday,  January  27,  1994  1 

Thursday,  February  3,  1994  349 

Thursday,  February  24,  1994  511 

Wednesday,  March  2,  1994  675 

Thursday,  March  3,  1994  761 

Thursday,  March  10,  1994  959 

Wednesday,  March  16,  1994  1059 

THURSDAY,  JANUARY  27,  1994 

Statements  of  Committee  Members 

Kohl,  Hon.  Herbert  1 

Cohen,  Hon.  WilUam  S  14 

Introduction  of  Nominees 

Kennedy,  Hon.  Edward  M 2 

Specter,  Hon.  Arlen  3 

Wofford,  Hon.  Harris  4 

Glenn,  Hon.  John  6 

Metzenbaum,  Hon.  Howard  7 

Stokes,  Hon.  Louis  7 

Norton,  Hon.  Eleanor  Holmes 8 

Breavtx,  Hon.  John  B  9 

Jefferson,  Hon.  William  J  11 

Testimony  of  Nominees 

Hon.  Judith  Ann  Wilson  Rogers,  of  Washington,  DC,  to  be  U.S.  Circuit  Judge 

for  the  District  of  Columbia  12 

Hon.  Michael  A.  Ponsor,  of  Massachusetts,  to  be  U.S.   District  Judge  for 

the  District  of  Massachusetts 18 

Hon.  Lesley  Brooks  Wells,  of  Ohio,  to  be  U.S.  District  Judge  for  the  Northern 

District  of  Ohio  22 

Marjorie  Rendell,  of  Pennsylvania,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Pennsylvania  27 

Thomas  Vanaskie,  of  Pennsylvania,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Pennsylvania  30 

Helen  Georgena  Berrigan,  of  Louisiana,  to  be  U.S.  District  Judge  for  the 

Eastern  District  of  Louisiana  34 

Tucker  Melancon,  of  Louisiana,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Louisiana  39 

Alphabetical  List  and  Materlu.  Submitted 

Berrigan,  Helen  Georgena: 

Testimony  34 

Questionnaire 230 

Biden,  Chairman  Joseph  R.,  Jr.: 

Letter  from  Charles  A.  Vanik,  Washington,  DC,  Jan.  24,  1994  304 


(III) 


IV 

Biden,  Chairman  Joseph  R.,  Jr. — Continued 

Statement  of  Laurack  D.  Bray,  opposing  the  confirmation  of  Judith  Rog-      ^^^ 

ers 305 

Copies  of  two  civil  rights  complaints  filed  in  the  U.S.  District  Court 
for  the  District  of  Columbia: 

Alice  Cheffield  v.  Henry  F.  Greene  307 

Sceva  J.  Kendall  v.  John  Ferren,  John  Terry,  and  Michael  Farrell  336 

Melancon,  Tucker: 

Testimony  39 

Questionnaire 261 

Court  cases 283 

Ponsor,  Hon.  Michael  A.: 

Testimony  18 

Questionnaire 69 

Rendell,  Marjorie: 

Testimony  27 

Questionnaire 149 

Rogers,  Hon.  Judith  Ann  Wilson: 

Testimony  ■. 12 

Questionnaire 43 

Vanaskie,  Thomas: 

Testimony  30 

Questionnaire 192 

Wells,  Hon.  Lesley  Brooks: 

Testimony  22 

Questionnaire 113 

THURSDAY,  FEBRUARY  3,  1994 
Statements  of  Committee  Members 

Biden,  Chairman  Joseph  R.,  Jr  349 

Hatch,  Hon.  Orrin  G 351 

Moseley-Braun,  Hon.  Carol  353 

Cohen,  Hon.  William  S  353 

Simon,  Hon.  Paul  374 

Thurmond,  Hon.  Strom  380 

Grassley,  Hon.  Charles  E  391 

Introduction  of  Nominee 

Graham,  Hon.  Bob  354 

Mack,  Hon.  Connie  357 

Chiles,  Hon.  Lawton  376 

Testimony  of  Nominee 

Hon.  Rosemary  Barkett,  of  Florida,  to  be  a  U.S.  Circuit  Judge  for  the  Elev- 
enth Circuit  359 

Alphabetical  List  and  Material  Submitted 

Barkett,  Hon.  Rosemary: 

Testimony  359 

Questionnaire 429 

Disler,  Mark: 

Letter  to  Chairman  Biden,  Apr.  13,  1994 481 

Chairman  Biden's  response,  Apr.  15,  1994  482 

Excerpt  from  the  Congressional  Record,  Oct.  7,  1994  483 

Graham,  Hon.  Bob: 

Prepared  statement  356 

Articles  relating  to  the  nomination  of  Rosemary  Barkett: 

The  Miami  Herald,  Sept.  28,  1993  484 

The  News-Journal,  Sept.  28,  1993  485 

The  Orlando  Sentinel,  Sept.  29,  1993  486 

Sun-Sentinel,  Oct.  1,  1993  487 

The  Tampa  Tribune,  Oct.  2,  1993  488 


Graham,  Hon.  Bob — Continued 

Articles  relating  to  the  nomination  of  Rosemary  Barkett — Continued  ^^ 

The  News-Journal,  Oct.  18,  1993 489 

St.  Petersburg  Times,  Oct.  19,  1993  490 

Tallahasse  Democrat,  Oct.  21,  1993   491 

Fort  Lauderdale  Sun-Sentinel,  Oct.  21,  1993  492 

Sarasota  Herald-Tribune,  Oct.  22,  1993 493 

Gainesville  Sun,  Oct.  23,  1993  494 

The  Palm  Beach  Post,  Oct.  24,  1993  495 

The  Orlando  Sentinel,  Oct.  25,  1993   496 

Florida  Clipping  Service,  Inc.,  Oct.  26,  1993  497 

The  Orlando  Sentinel,  Oct.  31,  1993  498 

The  New  York  Times,  Nov.  5,  1993  499 

Ocala  Star  Banner,  Nov.  8,  1993  500 

News-Press,  Nov.  13,  1993  501 

Miami  Times,  Nov.  18,  1993  502 

The  Wall  Street  Journal,  Nov.  29,  1993  503 

The  New  Yorker,  Dec.  20,  1993  504 

St.  Petersburg  Times,  Dec.  21,  1993  506 

Gainesville  Sun,  Dec.  23,  1993  507 

The  Atlanta  Journal,  Dec.  26,  1993  508 

Hatch,  Hon.  Orrin  G.: 

Questions  for  Chief  Justice  Barkett 469 

Responses  from  Chief  Justice  Barkett  472 

Supplemental  questions  for  Chief  Justice  Barkett  and  her  responses  476 

Simon,  Hon.  Paul: 

Letter  to  Chairman  Biden  from  the  National  Association  of  Police  Organi- 
zations, Inc.,  Washington,  DC,  Oct.  22,  1993  375 

Thurmond,  Hon.  Strom: 

Questions  for  Chief  Justice  Barkett 477 

Responses  from  Chief  Justice  Barkett  480 

THURSDAY,  FEBRUARY  24,  1994 
Statements  of  Committee  Members 

Hellin,  Hon.  Howell  511 

Brown,  Hon.  Hank  518 

Introduction  of  Nominees 

Hutchison,  Hon.  Kay  Bailey  511 

Brooks,  Hon.  Jack  512 

Coleman,  Hon.  Ronald  D  513 

Bryant,  Hon.  John  513 

Tejeda,  Hon.  Frank  514 

Ortiz,  Hon.  Solomon  P  525 

Testimony  of  Nominees 

Samuel  Frederick  Bieiy,  Jr.,  San  Antonio,  TX,  to  be  U.S.  District  Judge 

for  the  Western  District  of  Texas  518 

William  Royal  Furgeson,  Jr.,  El  Paso,  TX,  to  be  U.S.  District  Judge  for 

the  Western  District  of  Texas  519 

Orlando  Luis  Garcia,  San  Antonio,  TX,  to  be  U.S.  District  Judge  for  the 

Western  District  of  Texas  521 

John  Henry  Hannah,  Jr.,  Tyler,  TX,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Texas  523 

Janis  Ann  Graham  Jack,  Corpus  Christi,  TX,  to  be  U.S.  District  Judge  for 

the  Southern  District  of  Texas  524 

Alphabetical  List  and  Material  Submitted 

Biery,  Samuel  Frederick,  Jr.: 

Testimony  518 

Questionnaire 527 


VI 

Furgeson,  William  Royal,  Jr.:  Page 

Testimony 519 

Questionnaire 554 

Gsircia,  Orlando  Lms: 

Testimony  521 

Questionnaire 580 

Hannah,  John  Henry,  Jr.: 

Testimony  523 

Questionnaire 606 

Jack,  Janis  Ann  Graham: 

Testimony  524 

Questionnaire 638 

WEDNESDAY,  MARCH  2,  1994 

Statements  of  Committee  Members 

Biden,  Chairman  Joseph  R.,  Jr 675 

Prepared  statement  677 

Hatch,  Hon.  Orrin  G 682 

Prepared  statement  683 

Grassley,  Hon.  Charles  E 696 

Introduction  of  Nominee 

Moynihan,  Hon.  Daniel  Patrick 678 

D'Amato,  Hon.  Alfonse  680 

Prepared  statement  681 

McNulty,  Hon.  Michael  R 685 

Quinn,  Hon.  Jack  685 

Prepared  statement  686 

Testimony  of  Nominee 

Thomas  A.  Constantine,  Schenectady,  NY,  to  be  Administrator,  U.S.  Drug 

Enforcement  Administration  688 

Alphabetical  List  and  Material  Submitted 

Biden,  Chairman  Joseph  R.,  Jr.: 

List  of  law  enforcement  organizations  and  former  DEA  Administrators 

supporting  the  nomination  692 

Questions  for  Superintendent  Thomas  Constantine  and  his  responses 747 

Constantine,  Thomas  Arthur: 

Testimony  688 

Questionnaire 716 

Leahy,  Hon.  Patrick  J.: 

Questions  for  Superintendent  Thomas  Constantine  and  his  responses 756 

Moynihan,  Hon.  Daniel  Patrick: 

Reprint  from  the  American  Scholar:  "Iatrogenic  Government"  734 

Chart  of  homicides  per  100,000  746 

THURSDAY,  MARCH  3,  1994 
Statements  of  Committee  Members 

Feinstein,  Hon.  Dianne  761 

Thurmond,  Hon.  Strom  764 

Introduction  of  Nominees 

HolHngs,  Hon.  Ernest  F  762 

Murray,  Hon.  Patty  764 

Wellstone,  Hon.  Paul  765 

Hatfield,  Hon.  Mark  O  766 

Wyden,  Hon.  Ron  767 

Graham,  Hon.  Bob  768 


VII 

Graham,  Hon.  Bob— Continued  ^^® 

Prepared  statement  769 

Johnston,  Hon.  Harry  770 

Durenberger,  Hon.  Dave  789 

Testimony  of  Nominees 

Cameron  Currie,  Columbia,  SC,  to  be  U.S.  District  Judge  for  the  District 

of  South  CaroHna  770 

Franklin  D.  Burgess,  Tacoma,  WA,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Washington  776 

Michael  Davis,  Minneapolis,  MN,  to  be  U.S.  District  Judge  for  the  District 

of  Minnesota  779 

Ancer  Haggerty,  Portland,  OR,  to  be  U.S.   District  Judge  for  the  District 

of  Oregon 783 

Daniel  T.K.  Hurley,  South  Palm  Beach,  FL,  to  be  U.S.  District  Judge  for 

the  Southern  District  of  Florida  786 

Alphabetical  List  and  Material  Submitted 

Biden,  Chairman  Joseph  R.,  Jr.: 

Letter  in  opposition  to  the  appointment  of  Judge  Ancer  Haggerty  to 
the  Federal  bench,  from  Roy  B.  Thompson,  P.C,  Portland,  OR,  Mar. 

2,  1994 955 

Letter  in  support  of  the  nomination  of  Judge  Michael  James  Davis  to 
be  a  U.S.  district  judge  for  the  District  of  Minnesota,  from  Members 
of  Congress,  House  of  Representatives,  Washington,  DC,  Mar.  3,  1994  ..      958 

Burgess,  Franklin  Douglas: 

Testimony  776 

Questionnaire 814 

Cvurie,  Cameron: 

Testimony  770 

Questionnaire 791 

Davis,  Michael: 

Testimony  779 

Questionnaire 830 

Haggerty,  Ancer: 

Testimony  783 

Questionnaire 884 

Hurley,  Daniel  T.K.: 

Testimony  786 

Questionnaire 918 

THURSDAY,  MARCH  10,  1994 

Statements  of  Committee  Members 

Biden,  Chairman  Joseph  R.,  Jr  959 

Hatch,  Hon.  Orrin  G 960 

Simon,  Hon.  Paul  965 

Thurmond,  Hon.  Strom  983 

Metzenbaum,  Hon.  Howard  M 986 

Simpson,  Hon.  Alan  K  988 

Feinstein,  Hon.  Dianne  991 

Cohen,  Hon.  William  S  994 

Moseley-Braun,  Hon.  Carol  997 

Prepared  statement  1000 

Grassley,  Hon.  Charles  E  1001 

Heflin,  Hon.  Howell  1005 

Specter,  Hon.  Arlen  1006 

Leahy,  Hon.  Patrick  J  1010 

Introduction  of  Nominee 

Kerry,  Hon.  John  F 962 

Prepared  statement  964 

Coppersmith,  Hon.  Sam  965 


VIII 

Coppersmith,  Hon.  Sam — Continued  p^^ 

Prepared  statement  967 

Kennedy,  Hon.  Edward  M  972 

Testimony  of  Nominee 

Deval  L.  Patrick,  to  be  Assistant  Attorney  General  for  Civil  Rights,  U.S. 
Department  of  Justice  968 

Alphabetical  List  and  Material  Submitted 

Biden,  Chairman  Joseph  R.,  Jr.: 
Letters  from: 

Hill  &  Barlow,  Boston,  MA,  Mar.  2,  1994  1051 

Massachusetts  Black  Lawyers  Association,  Boston,  MA,  Mar.  9,  1994      1053 
U.S.  Department  of  Justice,  Washington,  DC,  Mar.   14,  1994,  with 
Deval  Patrick's  responses  to  Senator  Pressler's  written  questions  ...    1055 
Coppersmith,  Hon.  Sam: 

'The  Right  Person  Is  Put  Forward  for  Civil  Rights  Post",  by  Judge 

Stephen  Reinhardt,  from  the  Los  Angeles  Times,  Feb.  21,  1994  1050 

Kennedy,  Hon.  Edward  M.: 

Prepared  statement  of  the  Lawyers'  Committee  for  Civil  Rights  Under 

Law 1010 

Patrick,  Deval  L.: 

Testimony  968 

Prepared  statement  971 

Questionnaire 1013 

WEDNESDAY,  MARCH  16,  1994 

Statements  of  Committee  Members 

Biden,  Chairman  Joseph  R.,  Jr  1059 

Hatch,  Hon.  Orrin  G 1061 

Simon,  Hon.  Paul  1071 

Moseley-Braun,  Hon.  Carol 1078 

Prepard  statement 1078 

Feinstein,  Hon.  Dianne  1078 

Thurmond,  Hon.  Strom  1081 

Metzenbaum,  Hon.  Howard  M 1085 

Grassley,  Hon.  Charles  E  1088 

Cohen,  Hon.  William  S 1090 

Specter,  Hon.  Arlen  1099 

Introduction  of  Nominee 

Mikulski,  Hon.  Barbara  1064 

Sarbanes,  Hon.  Paul  S  1064 

Morella,  Hon.  Constance  A  1065 

Testimony  of  Nominee 

Jamie  S.  Gorelick,  to  be  Deputy  Attorney  General,  U.S.  Depsutment  of  Jus- 
tice      1067 

Alphabetical  List  and  Material  Submitted 

Biden,  Chairman  Joseph  R.,  Jr.: 

Letter  from  the  U.S.  Department  of  Justice,  Washington,  DC,  May  12, 

1994  1154 

Attachments — Jamie  Gorelick's  respones  to  questions  submitted  by: 

Senator  Leahy  1155 

Senator  Simpson  1158 

Senator  Pressler  1159 

DOJ  memorandums  to: 

Janet  Reno,  Attorney  General,  from  18  trial  lawyers.  Environmental 
Crimes  Section,  Mar.  3,  1994 1165 


IX 

Biden,  Chairman  Joseph  R.,  Jr. — Continued  ^^^^ 

DOJ  memorandums  to— Continued 

All  section  line  attorneys,  from  Messrs.  Miskiewicz,  Murtha,  Nagle, 

and  Uhlman,  Mar.  4,  1994  1167 

Gorelick,  Jamie: 

Testimony 1067 

Questionnaire 1111 

Moseley-Braun,  Hon.  Carol: 

Letter  from  the  Hispanic  Bar  Association  of  the  District  of  Columbia, 
Washington,  DC,  Mar.  15,  1994  ...., 1169 

ALPHABETICAL  LIST  OF  NOMINEES  FOR  FEDERAL  APPOINTMENTS 

Barkett,  Hon.  Rosemary,  of  Florida,  to  be  U.S.  Circuit  Judge  for  the  Eleventh 

Circuit  359 

Berrigan,  Helen  Georgena,  of  Louisiana,  to  be  U.S.  District  Judge  for  the 

Eastern  District  of  Louisiana 34 

Biery,  Samuel  Frederick,  Jr.,  San  Antonio,  TX,  to  be  U.S.  District  Judge 

for  the  Western  District  of  Texas  518 

Burgess,  Franklin  D.,  Tacoma,  WA,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Washington 776 

Constantine,  Thomas  A.,  Schenectady,  NY,  to  be  Administrator,  U.S.  Drug 

Enforcement  Administration  688 

Ciurie,  Cameron,  Columbia,  SC,  to  be  U.S.  District  Judge  for  the  District 

of  South  Carolina  770 

Davis,  Michael,  Minneapolis,  MN,  to  be  U.S.  District  Judge  for  the  District 

of  Minnesota  779 

Furgeson,  William  Royal,  Jr.,  El  Paso,  TX,  to  be  U.S.   District  Judge  for 

the  Western  District  of  Texas  519 

Garcia,  Orlando  Luis,  San  Antonio,  TX,  to  be  U.S.  District  Judge  for  the 

Western  District  of  Texas  521 

Gorelick,  Jamie  S.,  to  be  Deputy  Attorney  General,  U.S.  Department  of  Jus- 
tice      1067 

Haggerty,  Ancer,  Portland,  OR,  to  be  U.S.  District  Judge  for  the  District 

of  Oregon 783 

Hannah,  John  Henry,  Jr.,  Tyler,  TX,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Texas  523 

Hurley,  Daniel  T.K.,  SouVh  Palm  Beac^^^  Judge  for 

the  Southern  District  of  Florida  786 

Jack,  Janis  Ann  Graham,  Corpus  Christi,  TX,  to  be  U.S.   District  Judge 

for  the  Southern  District  of  Texas  524 

Melancon,  Tucker,  of  Louisiana,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Louisiana  39 

Patrick,  Deval  L.,  to  be  Assistant  Attorney  General  for  Civil  Rights,  U.S. 

Department  of  Justice  968 

Ponsor,  Hon.   Michael  A.,  of  Massachusetts,  to  be  U.S.   District  Judge  for 

the  District  of  Massachusetts 18 

Rendell,  Marjorie,  of  Pennsylvania,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Pennsylvania  27 

Rogers,   Hon.   Judith  Ann  Wilson,  of  Washington,   DC,   to  be  U.S.   Circuit 

Judge  for  the  District  of  Columbia  12 

Vanaskie,  Thomas,  of  Pennsylvania,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Pennsylvania  30 

Wells,  Hon.  Lesley  Brooks,  of  Ohio,  to  be  U.S.  District  Judge  for  the  Northern 

District  of  Ohio  22 


NOMINATIONS  OF  JUDITH  ANN  WILSON  ROG- 
ERS, TO  BE  U.S.  CIRCUIT  COURT  JUDGE;  MI- 
CHAEL A.  PONSOR;  LESLEY  BROOKS  WELLS; 
MARJORIE  RENDELL;  THOMAS  VANASKIE; 
HELEN  GEORGENA  BERRIGAN;  AND  TUCK- 
ER MELANCON,  TO  BE  U.S.  DISTRICT 
JUDGES 


THURSDAY,  JANUARY  27,  1994 

U.S.  Senate, 
Committee  on  the  Judiciary, 

Washington,  DC. 

The  committee  met,  pursuant  to  notice,  at  2:03  p.m.,  in  room 
SD-226,  Dirksen  Senate  Office  Building,  Hon.  Herb  Kohl  presiding. 

Also  present:  Senators  Kennedy,  Metzenbaum,  Specter,  and 
Cohen. 

OPENDSIG  STATEMENT  OF  SENATOR  KOHL 

Senator  KOHL.  This  hearing  will  come  to  order. 

This  afternoon,  the  Judiciary  Committee  will  conduct  a  hearing 
on  the  following  judicial  nominees:  Judge  Judith  Rogers,  of  the  Dis- 
trict of  Columbia,  to  be  circuit  court  judge  for  the  District  of  Co- 
lumbia Court  of  Appeals;  Judge  Michael  Ponsor,  to  be  district  court 
judge  for  the  District  of  Massachusetts;  Judge  Lesley  Brooks  Wells, 
to  be  district  court  judge  for  the  Northern  District  of  Ohio;  Marjorie 
Rendell,  to  be  district  court  judge  for  the  Eastern  District  of  Penn- 
sylvania; Thomas  Vanaskie,  to  be  district  court  judge  for  the  Mid- 
dle District  of  Pennsylvania;  Helen  Berrigan,  to  be  district  court 
judge  for  the  Eastern  District  of  Louisiana;  and  Tucker  Melancon, 
to  be  district  judge  for  the  Western  District  of  Louisiana. 

As  is  customary,  we  will  hear  first  from  Senators  and  Represent- 
atives who  wish  to  introduce  nominees  to  the  committee.  But  be- 
fore we  turn  to  them,  let  me  state  for  the  record  that  each  nominee 
has  completed  a  detailed  questionnaire  on  his  or  her  qualifications, 
experience,  finances,  and  philosophy.  The  portions  of  the  question- 
naires available  to  the  public  will  be  printed  in  the  record  of  this 
hearing. 

We  understand  that  we  may  receive  written  testimony  about  the 
nomination  of  Judith  Rogers  from  Larac  Bray.  We  will  keep  the 
record  open  for  a  limited  time  for  any  other  written  testimony  sub- 
mitted to  the  committee,  and  just  in  case  members  of  the  commit- 
tee would  like  to  submit  written  questions.  Of  course,  we  will  place 

(1) 


in  the  record  the  full  introductory  statements  of  home  State  Sen- 
ators. 

Are  there  any  other  comments  from  Senators  before  we  move  on 
to  introductions? 

[No  response.] 

We  have  a  number  of  very  distinguished  Senators  and  Rep- 
resentatives who  are  with  us  today,  and  we  would  like  to  begin 
with  them  as  they  introduce  the  nominees  from  their  State.  First 
we  would  like  to  ask  Senator  Kennedy  and,  if  he  is  here.  Senator 
Kerry  to  speak  in  behalf  of  Judge  Ponsor,  if  Judge  Ponsor  would 
come  forward. 

STATEMENT  OF  HON.  EDWARD  M.  KENNEDY,  A  U.S.  SENATOR 
FROM  THE  STATE  OF  MASSACHUSETTS 

Senator  Kennedy.  Thank  you  very  much,  Mr.  Chairman  and 
Senator  Specter. 

I  want  to  follow  the  adage  that  the  shorter  the  introduction,  the 
more  rapidly  the  committee  considers  the  nominee,  so  I  will  not 
take  a  great  deal  of  time.  But  I  want  to  say  what  a  real  honor  it 
is  to  be  able  to  recommend  to  this  committee  and  to  the  Senate  a 
really  extraordinary  candidate  for  judge  for  the  Federal  district 
court  in  Massachusetts. 

Michael  Ponsor  has  been  associated  with  excellence  since  the 
earliest  days  of  his  life,  an  absolutely  brilliant  student  in  his  early 
days  and  his  primary  and  secondary  days,  an  outstanding  academic 
record  in  college  at  Harvard  University,  was  awarded  a  Rhodes 
Scholarship  and  later  at  Yale,  has  had  a  brilliant  career  in  the  law 
in  the  private  sector  among  many  of  our  outstanding  law  firms  in 
Boston  and  western  Massachusetts;  currently  serves  as  a  mag- 
istrate. 

As  you  know,  Mr.  Chairman,  magistrates,  with  the  agreement  of 
the  parties,  can  serve  as  the  judge  in  civil  cases.  It  is  a  fact  that 
Michael  Ponsor  has  served  with  the  confidence  of  the  parties  more 
than  all  of  the  other  magistrates  in  Massachusetts  combined.  I 
think  this  is  a  very  clear  indication  of  the  kind  of  confidence  that 
those  that  have  respect  for  the  law  and  have  a  sense  of  his  fairness 
and  his  judiciousness  have  taken. 

One  of  the  qualities  of  Michael  Ponsor  that  I  find  most  appealing 
is  his  interest  in  community  and  pro  bono  work.  In  high  school,  he 
was  involved  in  tutoring  children.  In  college,  in  his  junior  year,  he 
went  and  taught  English  in  Kenya.  He  is  the  only  person  that  I 
have  ever  known  or  that  probably  has  been  before  this  committee 
that  speaks  Swahili  as  well  as  Finnish. 

When  he  was  in  law  school,  he  served  in  the  Legal  Defenders 
and  spent  a  great  deal  of  time  both  in  law  school  at  Yale  and  also 
in  the  practice  of  the  law  with  pro  bono  work.  He  probably  has  had 
as  much  pro  bono  work  as  many,  many  other  individuals  combined 
before  this  committee. 

We  had  set  up,  John  Kerry  and  I,  a  group  of  men  and  women, 
distinguished  men  and  women  of  the  bar  in  Massachusetts.  That 
committee  was  chaired  by  Mr.  Curtin,  who  was  the  former  presi- 
dent of  the  ABA,  and  had  many  distinguished  members. 

They  had  recommended  to  Senator  Kerry  and  to  myself  Michael 
Ponsor,  and  we  had  the  opportunity  of  reviewing  the  background 


and  the  experience  and  the  temperament  of  individuals,  Michael 
Ponsor  and  others,  and  Senator  Kerry  and  I  have  a  great  sense  of 
pride  in  recommending  his  name  to  the  President,  and  we  feel  that 
the  President  has  selected  wisely  in  sending  him  to  this  committee. 
I  know  that  he  will  be  an  outstanding  judge.  He  served  as  a  clerk 
to  Judge  Tauro,  who  is  the  chief  of  our  court,  and  Judge  Tauro, 
who  is  one  of  our  most  distinguished  members,  has  nothing  but  the 
highest  praise  and  recommendation  of  this  nominee. 

I  am  proud  to  make  the  recommendation,  and  I  look  forward  to 
favorable  approval  by  the  committee  and  the  Senate. 

Thank  you. 

Senator  KOHL.  Thank  you  very  much,  Senator  Kennedy. 

I  notice  that  Senator  Kerry  is  guiding  legislation  on  the  floor  at 
this  time  and  wanted  to  be  here. 

Senator  KENNEDY.  He  wanted  to  have  his  remarks  included.  I 
know  I  spoke  for  him  when  I  made  those  comments,  and  if  he  was 
not  on  the  floor,  he  would  be  over  here. 

If  I  could  just  take  30  seconds  more,  it  is  a  personal  delight  for 
me  also  to  say  that  Judge  Rendell  has  been  nominated,  and  I  have 
known  the  family  for  many,  many  years — intelligent,  thoughtful, 
committed  to  law.  He  has  been  a  very  dear  and  wonderful,  valued 
friend,  and  I  know  will  be  an  outstanding  judge. 

Senator  KoHL.  We  thank  you. 

We  thank  you,  Judge  Ponsor.  We  will  get  back  to  you. 

Second,  we  have  here  with  us  today  Senators  Specter  and 
Wofford,  who  will  be  speaking  in  behalf  of  Ms.  Rendell  and  also 
Mr.  Vanaskie.  If  they  would  come  forward,  please,  Ms.  Rendell  and 
Mr.  Vanaskie. 

Senator  Specter. 

STATEMENT  OF  HON.  ARLEN  SPECTER,  A  U.S.  SENATOR  FROM 
THE  STATE  OF  PENNSYLVANIA 

Senator  Specter.  Thank  you  very  much,  Mr.  Chairman. 

It  is  easier  to  find  a  seat  up  here  today  than  it  is  in  the  hearing 
room,  so  I  will  exercise  my  prerogative  as  being  both  an  introducer 
and  a  committee  member.  It  is  not  to  be  both  a  litigant  and  a  judge 
in  the  same  case. 

I  have  the  distinct  pleasure,  along  with  my  colleague  Senator 
Wofford,  to  present  to  the  committee  two  very  distinguished  law- 
yers. 

Ladies  first,  Marjorie  Rendell  has  an  outstanding  academic 
record,  graduating  cum  laude  from  the  University  of  Pennsylvania, 
and  graduating  from  Villanova  Law  School.  She  has  worked  with 
the  very  prestigious  law  firm,  Duane,  Morris  &  Heckscher  in  Phila- 
delphia, for  more  than  20  years,  and  she  has  a  really  outstanding 
record. 

Beyond  those  formal  qualifications,  I  can  personally  attest  to 
knowing  Midge  Rendell  from  the  time  she  came  to  a  district  attor- 
ney's party  in  Philadelphia  with  a  young  assistant  district  attorney 
whom  she  married  in  1971.  And  with  her  tutelage  and  instruction, 
he  became  the  district  attorney  of  Philadelphia,  and  he  is  now  the 
mayor  of  Philadelphia. 

There  is  an  old  story,  which  I  will  take  just  1  minute  to  tell.  It 
was  first  told  to  me  about  Mayor  Flaherty  of  Pittsburgh,  and  I  be- 


lieved  it  at  the  time.  He  was  married  to  a  very  distinguished 
woman,  Nancy  Flaherty,  and  they  were  walking  along  and  ran  into 
a  fellow  coming  out  of  a  sewer  pond.  Mrs.  Flaherty  recognized  the 
young  man  and  greeted  him,  and,  as  they  walked  away,  told  Mayor 
Flaherty  that  they  used  to  date.  He  said  to  her,  "Aren't  you  glad 
you  married  me?  I'm  the  Mayor  of  Pittsburgh."  As  you  may  have 
guessed  by  now,  she  said,  "If  I  had  married  him,  he  would  have 
been  the  Mayor  of  Pittsburgh."  [Laughter.] 

I  thought  that  was  a  true  story,  and  perhaps  it  is.  Midge  Rendell 
is  married  to  Ed  Rendell,  the  mayor,  and  has  a  very,  very  distin- 
guished professional  career  in  her  own  right,  and  I  am  delighted 
to  see  her  nominated  here  today. 

If  I  may  proceed  now  with  Mr.  Tom  Vanaskie,  another  very  dis- 
tinguished lawyer:  Tom  Vanaskie  is  a  graduate  of  the  Dickinson 
School  of  Law,  a  cum  laude.  He  clerked  for  Judge  William  Nealon, 
a  very  distinguished  jurist  in  the  Middle  District  of  Pennsylvania. 
He  was  associated  with  a  very  outstanding  and  prestigious  law 
firm,  Dilworth,  Paxson,  LaHsh  &  Kauffman,  for  2  years,  at  a  time 
when  I  believe  the  current  Governor  of  Pennsylvania,  Grovemor 
Casey,  was  associated  with  the  firm.  He  has  been  in  his  own  firm, 
Elliott,  Vanaskie  &  Riley,  for  the  past  decade. 

He  hails  from  Scranton,  PA,  and  has  promised  to  be  an  outstand- 
ing district  judge,  and  I  am  delighted  to  join  with  Senator  Wofford 
in  presenting  Ms.  RendeU  and  Mr.  Vanaskie  to  the  committee 
today. 

Senator  KOHL.  Thank  you  very  much.  Senator  Specter. 

Senator  Wofford. 

STATEMENT  OF  HON.  HARRIS  WOFFORD,  A  U.S.  SENATOR 
FROM  THE  STATE  OF  PENNSYLVANIA 

Senator  WOFFORD.  Senator  Kohl,  Mr.  Chairman,  Senator  Cohen, 
my  senior  Senators.  I  thank  you,  Arlen. 

It  is  my  pleasure  to  come  here  today  to  introduce  two  Pennsylva- 
nians  that  the  President  has  nominated  for  the  U.S.  district  court. 
First,  to  my  right  is  Thomas  Vanaskie,  who  is  a  nominee  for  the 
Federal  District  Court  for  the  Middle  District  of  Pennsylvania. 
With  him  today  is  his  family,  his  wife  Dorothy,  and  his  three  chil- 
dren, Diane,  Laura,  and  Tommy. 

Would  you  stand?  Thank  you,  Vanaskies  all. 

Tom  comes  from  the  central  portion  of  our  State,  a  small  coal 
mining  town  called  Schmoken,  where  he  learned  the  value  of  hard 
work  from  his  parents,  his  father  a  seasonal  bricklayer  and  local 
labor  leader,  and  his  mother  a  shirt  factory  worker.  By  the  time  he 
graduated  from  law  school,  Tom  had  worked  as  a  paper  boy,  a  serv- 
ice station  attendant,  a  dishwasher,  a  fast-food  worker,  a  tree 
planter,  an  assembly  line  worker,  a  stock  boy,  and  as  a  construc- 
tion worker,  and  probably  a  few  other  things. 

He  also  found  time  to  distinguish  himself  academically,  graduate 
magna  cum  laude  from  Lycoming  College  in  Williamsport,  and 
graduating  cum  laude  from  Dickinson  School  of  Law  in  Carlisle, 
where  he  ranked  fourth  in  his  class  and  was  a  member  of  the  Law 
Review  editorial  staff. 

After  law  school,  Tom  clerked  for  2  years  with  then  Chief  Judge 
William  Nealon  of  the  U.S.  District  Court  for  the  Middle  District. 


And  for  the  past  14  years,  he  has  been  in  private  practice  and  is 
currently  a  partner  and  vice  president  of  Elliott,  Vanaskie  &  Riley 
in  Scranton. 

During  his  years  of  practice,  Tom  has  been  an  active  member  of 
eight  bar  associations,  a  recognized  leader  of  the  middle  district 
bar.  He  was  appointed  to  the  Lawyers  Advisory  Committee  of  the 
U.S.  District  Court  for  the  Middle  District  in  1992,  and  the  next 
year  he  was  appointed  to  the  Civil  Justice  Reform  Act  Committee 
for  the  middle  district  bench. 

I  know  he  will  be  a  fme  addition  to  the  middle  district  bench. 

Next,  Marjorie  "Midge"  Rendell,  who  the  President  has  nomi- 
nated to  the  U.S.  District  Court  for  the  Eastern  District  of  Penn- 
sylvania. She  is  accompanied  by  her  husband  Ed  Rendell,  Ed  the 
mayor,  and  their  son  Jesse. 

Would  you  stand?  Thank  you. 

Midge  was  bom  in  our  neighboring  State,  the  chairman  of  this 
committee's  State  of  Delaware,  but  thereafter  she  graduated  cum 
laude  from  the  University  of  Pennsylvania,  where  she  was  as  mem- 
ber of  Phi  Beta  Kappa.  She  attended  Georgetown  University  Law 
School,  where  she  was  asked  to  join  the  school's  law  journal,  before 
she  transferred  and  then  graduated  from  Villanova  Law  School. 

She  began  her  legal  career  in  1973  at  the  Philadelphia  firm  of 
Duane,  Morris  &  Heckscher,  where  she  is  now  a  partner  and  leader 
of  the  reorganization  and  finance  section.  She  is  a  recognized  ex- 
pert on  issues  of  bankruptcy  and  commercial  finance  law,  a  subject 
on  which  she  has  written  articles  and  conducted  numerous  semi- 
nars and  presentations. 

In  addition  to  her  reputation  as  a  respected  member  of  both  the 
Philadelphia  and  Pennsylvania  bars.  Midge  Rendell  has  been  a 
civic  leader.  She  serves  on  the  boards  of  the  Academy  of  Vocal  Arts, 
as  vice  chair  of  the  Avenue  of  the  Arts,  Inc.,  the  Market  Street 
East  Improvement  Association,  Pennsylvania's  Campaign  for 
Choice,  Philadelphia  Friends  for  Outward  Bound,  and  vice  chair  of 
the  board  of  trustees  for  the  Visiting  Nurses  Association  of  Greater 
Philadelphia,  and  on  the  board  of  managers  of  the  Visiting  Nurses 
Society. 

She  is  engaged  in  pro  bono  activity  that  includes  work  as  a  medi- 
ator with  the  U.S.  District  Court  for  the  Eastern  District,  and  is 
a  board  member  of  the  Philadelphia  Bar  Foundation. 

She  is  that  rare  individual  who  combines  the  talent  of  people 
skills  with  intellectual  and  professional  ability,  to  make  a  positive 
contribution  to  the  people  and  institutions  around  her.  I  am  certain 
she  will  do  the  same  as  an  outstanding  member  of  the  eastern  dis- 
trict bench. 

Again,  I  express  my  delight  at  being  able  to  present  to  you  two 
nominees  who  are  fair,  principles,  intelligent,  and  dedicated  law- 
yers, who  will  make  excellent  Federal  judges. 

Senator  KoHL.  We  thank  you  very  much.  Senator  Wofford. 

We  will  get  back  to  you  in  just  a  short  while,  my  friends. 

Next  we  have  here  Judge  Wells,  who  will  be  introduced  by  Sen- 
ator Metzenbaum,  Senator  Glenn,  and  also  Congressman  Lewis 
Stokes. 

Senator  Glenn. 


STATEMENT  OF  HON.  JOHN  GLENN,  A  U.S.  SENATOR  FROM 

THE  STATE  OF  OHIO 

Senator  Glenn.  Thank  you,  Mr.  Chairman  and  members  of  the 
committee. 

It  is  a  real  pleasure  for  me  to  be  here  this  afternoon  to  present 
to  you  Judge  Lesley  Brooks  Wells.  With  so  many  qualified  persons 
in  Ohio,  the  decision  of  who  to  recommend  for  this  post  was  not  an 
easy  one.  And  I  know  you  are  all  aware  that  Judge  Wells  has  ster- 
ling legal  credentials  and  a  distinguished  legal  background.  But 
what  sets  Judge  Wells  apart  for  me  was  her  commitment  to  public 
service  and  her  willingness  to  face  head-on  the  tough  issues  which 
plague  our  society. 

I  do  not  believe  that  it  is  enough  for  the  people  we  entrust  with 
the  awesome  responsibility  of  serving  on  the  Federal  bench  to  know 
just  legal  theory.  In  order  to  perform  their  job  effectively,  I  believe 
they  should  also  feel  a  deep  sense  of  responsibility  to  society.  And 
through  her  actions.  Judge  Wells  has  proven  her  commitment  to 
society  and  she  has  wrestled  with  many  of  the  difficult  issues  that 
a  Federal  judge  must  face. 

For  3  years,  she  traveled  throughout  Ohio  as  chair  of  the  Gov- 
ernor's Task  Force  on  Family  Violence.  The  task  force  focused  on 
child  abuse,  elder  abuse,  domestic  violence,  all  vitally  important  is- 
sues afflicting  modem  American  society. 

She  has  also  been  a  shining  example  of  the  good  that  lawyers 
can  do,  if  they  just  put  their  minds  to  it.  It  was  her  leadership  that 
established  a  citywide  pro  bono  program,  encouraging  all  lawyers 
in  her  native  Cleveland  to  reach  out  and  give  a  little  something 
back. 

Judge  Wells  has  also  been  a  real  inspiration  in  Ohio,  working  on 
such  difficult  issues  as  mental  health  and  counseling,  legal  aid,  and 
improving  the  health  care  received  by  residents  of  Cleveland's 
inner-city. 

Mr.  Chairman  and  members  of  the  committee,  we  could  go  on 
with  other  accomplishments  and  accolades,  but  I  think  you  get  the 
idea.  In  her  life  and  in  her  work,  she  has  proven  that  one  person 
really  can  make  a  difference. 

I  respectfully  ask  the  members  of  this  committee  to  allow  Judge 
Wells  to  continue  making  a  difference  and  to  serve  as  a  positive 
force  of  commitment,  integrity,  and  responsibility  on  the  Federal 
bench. 

I  think  Judge  Wells'  two  daughters  are  here  today,  and  I  would 
like  to  introduce  them.  I  think  Karen  and  Christen  are  back  in  the 
back  here. 

Would  you  stand  up?  Thank  you. 

And  thank  you,  Mr.  Chairman.  I  am  glad  to  recommend  Judge 
Wells  and  give  my  unqualified  recommendation.  I  know  that  she 
will  be  a  great  Federal  judge. 

Senator  KOHL.  Thank  you.  Senator  Glenn. 

Senator  Metzenbaum. 


STATEMENT  OF  HON.  HOWARD  M.  METZENBAUM,  A  U.S. 
SENATOR  FROM  THE  STATE  OF  OHIO 

Senator  METZENBAUM.  Mr.  Chairman,  I  am  pleased  to  join  Sen- 
ator Glenn  and  Congressman  Lew  Stokes  in  support  of  the  nomina- 
tion of  Judge  Lesley  Brooks  Wells. 

It  comes  as  no  surprise  that  those  who  know  Judge  Wells,  that 
President  Clinton  has  nominated  her  to  serve  on  the  Federal 
bench.  That  is  where  she  should  be,  and  I  hope  that,  as  a  result 
of  this  committee's  deliberations  and  the  Senate  action,  that  she 
will  be  on  that  bench. 

Her  dedication  to  legal  excellence  and  public  service  make  her  an 
outstanding  candidate  to  serve  on  the  Federal  district  bench,  and 
she  deserves  our  support. 

One  of  the  reasons  that  she  will  be  an  excellent  Federal  judge 
is  her  ability  to  put  herself  in  the  shoes  of  the  parties  that  appear 
before  her.  Her  ability  stems  from  the  fact  that  she  has  a  diverse 
legal  and  nonlegal  background  that  few  can  match. 

After  obtaining  her  B.A.  from  Chatham  College  in  1959,  and  rais- 
ing a  family,  she  is  one  of  those  pioneering  women  in  the  1970's 
who  made  the  law  their  second  career.  Since  that  time,  she  has 
been  a  sole  practitioner,  an  equal  employment  opportunity  litiga- 
tion director,  an  adjunct  professor  of  law  and  urban  studies  at  sev- 
eral Ohio  universities. 

In  1983,  she  was  appointed  to  the  Court  of  Common  Pleas  in 
Cuyahoga  County,  OH.  During  her  term  on  the  bench,  she  has  lit- 
erally served  with  distinction  and  is  well  known  for  her  fairness, 
for  her  scholarship,  and  her  wonderful  judicial  temperament. 

Despite  the  rigorous  schedule  one  must  keep  as  a  trial  judge,  she 
has  made  the  time  to  volunteer  at  a  free  medical  clinic.  Her  energy 
and  enthusiasm  for  life  and  the  law  and  public  service  seems  to 
have  no  bounds. 

I  urge  this  committee  to  promptly  move  forward  with  her  nomi- 
nation and  send  her  name  to  the  entire  Senate  for  confirmation. 

Senator  KOHL.  Thank  you  very  much.  Senator  Metzenbaum. 

Congressman  Stokes. 

STATEMENT  OF  HON.  LOUIS  STOKES,  A  REPRESENTATIVE  IN 
CONGRESS  FROM  THE  STATE  OF  OHIO 

Mr.  Stokes.  Thank  you  very  much,  Mr.  Chairman. 

It  is  an  honor  for  me  to  join  my  two  distinguished  Senators  from 
the  State  of  Ohio,  Senator  Glenn  and  Senator  Metzenbaum,  here 
this  afternoon  in  behalf  of  the  nomination  of  Judge  Lesley  Brooks 
Wells. 

One  of  the  things  I  think  distinguishes  this  lady,  along  with  the 
outstanding  and  exemplary  legal  career  she  has  had  is  that  she 
was  a  person  characterized  with  a  strong  community  activist  record 
in  our  community  for  30  years.  While  raising  her  four  children,  she 
was  involved  in  the  community  school  activities  and  development 
of  a  stable,  integrated  community. 

Mr.  Chairman,  while  raising  her  children,  she  went  to  law  school 
and  served  in  a  variety  of  legal  positions,  specializing  in  civil 
rights,  with  a  strong  involvement  in  matters  involving  ethics.  Her 
law  practice  was  also  extremely  diverse.  She  is  an  individual  wh'^ 


8 

has  served  all  the  way  from  a  neighborhood  law  office  to  one  of 
Cleveland's  oldest  law  firms. 

During  this  period,  she  has  been  very  active  in  the  political  life 
of  our  community,  and  extremely  active  in  matters  related  to  the 
Democratic  Party  in  the  State  of  Ohio.  The  political  organization 
which  I  happen  to  chair  in  Cleveland  always  endorsed  her  in  every 
one  of  her  races.  She  was  one  of  the  persons  in  our  community 
whom  we  felt  was  one  of  the  finest  public  servants  that  we  have 
had  the  privilege  of  supporting. 

She  brings  to  this  nomination  and  to  this  room  today  great  back- 
ground in  terms  of  her  service  on  the  bench,  both  in  domestic  rela- 
tions court  and  several  years  on  the  common  pleas  court  bench. 
Throughout  her  career,  in  all  of  her  ratings  she  has  been  rated  ex- 
tremely high,  both  in  terms  of  scholarship  and  integrity.  She  is  the 
type  of  judge  who  can  face  the  type  of  tough  issues  faced  by  a  Fed- 
eral court  judge.  She  has  been  a  professor  of  law.  She  is  a  prolific 
writer  on  legal  matters. 

I  would  just  like  to  close  by  reading  just  a  brief  paragraph  from 
a  letter  she  dropped  to  me  last  year  when  she  was  here  in  conjunc- 
tion with  her  nomination  and  had  been  over  to  see  the  two  Sen- 
ators. She  stopped  by  my  office  and  she  wrote  me  a  letter  after  her 
return  to  Cleveland,  and  I  just  want  to  read  this  paragraph  from 
that  letter: 

When  I  left  your  office,  I  walked  to  the  Supreme  Court  to  pay  my  respects  to  Mr. 
Justice  Marshall.  Walking  past  the  men  and  women  calming  waiting  became  a  pow- 
erful experience.  There  was  no  stiff  solemnity,  no  restlessness  in  the  long  lines,  just 
respect  and  a  kind  of  solid  comfort.  Your  experience  arguing  the  Terry  case  ran 
through  my  mind.  People  talked  in  line  about  Justice  Marshall,  what  he  meant  to 
them,  why  they  were  there.  Loss  was  expressed,  but  joy,  too,  especially  for  his  cour- 
age and  example.  It  was  a  gathering  I  won't  forget.  Fierce  for  justice  how  I  think 
of  him,  and  a  powerful  example  to  every  one  of  us. 

I  think  that  those  words  exemplify  the  characteristics  that  this 
distinguished  lady  would  bring  to  the  Federal  judiciary,  and  I 
would  urge  this  distinguished  committee  to  confirm  her  nomina- 
tion. 

I  thank  you,  Mr.  Chairman. 

Senator  KoHL.  Thank  you  very  much,  Congressman  Stokes,  Sen- 
ator Glenn  and  Senator  Metzenbaum. 

Before  we  ask  you  to  step  down,  and  we  will  ask  you  back  in  a 
minute,  I  would  just  like  to  ask  you  in  a  word.  Judge  Wells,  can 
you  confirm  the  veracity  of  everything  that  has  been  said  about 
you?  [Laughter.] 

Judge  Wells.  It  is  time  for  silence. 

Senator  KoHL.  You  have  not  taken  the  oath  yet.  [Laughter.] 

We  have  Judge  Judith  Rogers,  who  will  step  up  now,  and  the 
District  Delegate  Eleanor  Holmes  Norton  along  with  her  to  intro- 
duce her. 

STATEMENT  OF  HON.  ELEANOR  HOLMES  NORTON,  A  REP- 
RESENTATIVE IN  CONGRESS  FROM  THE  DISTRICT  OF  CO- 
LUMBIA 

Ms.  Norton.  Thank  you,  Mr.  Chairman. 

It  is  a  great  pleasure  and  a  real  privilege  to  be  able  to  introduce 
to  you  this  afternoon  a  woman  of  well-known  accomplishments  in 


this  city.  I  recognize  that  it  is  not  necessary  to  call  the  entire  roll 
on  her  long  list  of  accomplishments. 

May  I  say,  though,  that  chief  judge  Judith  Rogers,  Chief  Judge 
of  the  District  of  Columbia  Court  of  Appeals,  has  spent  her  life  in 
the  law,  and  much  of  that  life  already  as  a  judge  in  a  way  that  has 
profoundly  prepared  her  for  the  role  that  President  Clinton  has 
nominated  her  to  assume. 

Chief  Judge  Rogers  has  served  for  more  than  10  years  on  our 
court  of  appeals,  and  for  half  of  that  time  she  has  been  chief  judge. 
She  was  chosen  as  chief  judge  when  there  were  judges  considerably 
more  senior,  an  indication  of  the  regard  in  which  she  is  held,  be- 
cause of  both  her  intellect  and  her  leadership  ability. 

Before  coming  to  the  court  of  appeals.  Judge  Rogers  served  as 
corporation  counsel  for  the  District  of  Columbia,  and  before  that  as 
an  attorney  in  the  U.S.  Department  of  Justice.  She  has  also  served 
as  an  assistant  U.S.  attorney  for  the  District  of  Columbia. 

Judge  Rogers  is  a  graduate  with  honors  of  Radcliffe  and  a  grad- 
uate, as  well,  of  Harvard  Law  School.  I  have  personally  seen  Judge 
Rogers  at  work  in  a  way  that  makes  me  not  only  comfortable,  but 
very  proud  to  recommend  her.  She  has  made  distinguished  con- 
tributions to  our  civil  and  criminal  justice  system.  She  has  worked 
with  tenacity  to  improve  that  system,  both  structurally  and  legally. 
Many  of  us  cannot  imagine  that  court  now  without  Chief  Judge 
Rogers  at  the  helm. 

Mr.  Chairman,  may  I  say  that,  as  I  have  already  heard,  you  will 
have  before  you  many  distinguished  candidates.  I  believe  it  is  rare 
that  you  will  find  a  candidate  of  the  quality  of  Chief  Judge  Judith 
Rogers,  and  I  am  pleased  to  recommend  her  for  the  position  of  a 
judge  on  the  U.S.  Court  of  Appeals  for  the  District  of  Columbia. 

Senator  KOHL.  Thank  you  for  that  very  kind  introduction. 

We  will  get  back  to  you  in  just  a  few  minutes. 

We  now  have  Helen  Berrigan  and  Tucker  Melancon  who  will  step 
forward,  along  with  their  introducers. 

Senator  Breaux. 

STATEMENT  OF  HON.  JOHN  B.  BREAUX,  A  U.S.  SENATOR  FROM 

THE  STATE  OF  LOUISIANA 

Senator  Breaux.  Thank  you  very  much,  Mr.  Chairman  and  Sen- 
ator Cohen,  for  allowing  us  to  present  Ginger  Berrigan  and  Tucker 
Melancon  to  the  committee  for  approval  of  their  nominations  to  the 
district  courts  in  Louisiana,  the  Federal  district  court. 

Tucker  Melancon,  if  there  is  ever  any  question  about  his  desire 
and  willingness  to  serve  in  this  position,  let  me  assure  this  commit- 
tee that  this  is  an  individual  who  has  called  me  daily  for  the  last 
4  months  asking  me  when  we  would  get  to  this  day.  He  has  the 
strong  desire  and  willingness  to  serve,  and  I,  without  question,  rec- 
ommend him  for  approval  by  this  committee. 

All  of  our  nominees  are  going  to  be  extremely  well  qualified  in 
the  law,  and  Tucker  is  no  different  in  that  regard,  having  grad- 
uated from  Louisiana  State  University  and  a  degree  in  law  from 
Tulane  University  in  Louisiana. 

But  he  also  brings  to  this  committee  I  think  something  that  is 
very  important  for  all  of  our  judges  in  our  system,  and  that  is  a 
knowledge  not  just  of  the  law,  but  also  a  knowledge  of  the  people 


10 

that  come  before  their  courts.  He  is  a  real  classic  example  of  a 
small  town  lawyer  who  has  had  a  small  town  practice.  He  has 
probably  got  his  fees  paid  by  corporations  every  now  and  then.  He 
has  probably  also  received  fees  from  the  products  that  were  pro- 
duced in  this  little  parish  in  Louisiana  of  Avoyelles  Parish,  where 
he  is  from.  Probably  he  was  paid  in  a  few  fruits  and  vegetables  and 
maybe  some  of  the  other  commodities,  because  many  of  his  clients 
could  not  afford  to  write  a  check. 

Tucker  Melancon  also  has  been  the  type  of  person  that  accepted 
everybody  who  came  before  him  and  said  I  need  to  be  represented. 
I  think  that  kind  of  human  connection  is  particularly  important  for 
all  of  our  judges,  and  certainly  he  brings  that  to  this  court. 

I  would  say  to  my  colleague  Senator  Cohen,  you  will  note  from 
his  resume  he  has  been  an  active  Democrat,  but  you  should  not 
have  any  fear,  because  he  has  always  performed  those  political  du- 
ties with  class  and  with  style.  And  over  all  of  these  years,  I  never 
heard  him  say  anything  nasty  or  unkind  about  any  political  race 
that  he  was  in  of  the  opposition.  I  think  that  kind  of  spirit  and  af- 
fection and  support  for  the  democratic  system  is  very,  very  impor- 
tant, and  that  is  the  kind  of  active  Democrat  that  he  has  been. 

Senator  Cohen.  It  is  pretty  unusual  in  Louisiana?  [Laughter.] 

Senator  Breaux.  Yes,  but  despite  that,  he  has  been  very  success- 
ful. That  is  a  good  point.  But  we  are  very  pleased  to  present  him 
to  the  committee. 

Ginger  Berrigan  is  also  a  person  I  think  that  brings  unique 
qualifications  to  this  committee.  She  is  a  person  who  is  not  only 
well  read,  but  well  traveled,  having  lived  in  several  different  areas 
of  our  country,  and  I  think  that  is  important,  because  it  brings  a 
great  deal  of  knowledge  about  what  this  country  is  all  about. 

You  note  that  she  has  a  degree  in  psychology,  which  is  a  good 
background  for  our  profession,  as  well  as  being  on  a  court  I  think, 
from  the  University  of  Wisconsin,  a  masters  in  journalism  from 
right  here  in  Washington  at  American  University,  and  a  juris  doc- 
torate from  Louisiana.  So  I  think  that  type  of  blend  is  important 
and  very  helpful  to  understanding  the  people  and  the  cultures  that 
come  before  the  court. 

She  also  is  a  member  and  a  partner  in  a  very  prominent  firm  in 
Louisiana,  the  Gravel,  Brady  &  Berrigan  firm,  which  is  well  known 
and  well  respected  and  has  produced  some  outstanding  legal  schol- 
ars for  our  State  and  practitioners. 

She  has  also  served  in  government,  being  on  the  Governor's  Par- 
don Board,  as  well  as  being  a  part-time  legislative  aide  at  a  very 
early  age — because  I  see  the  date,  Ginger — to  the  chairman  of  this 
committee,  Joe  Biden,  back — I  will  not  say  when,  but  about  the 
time  I  was  coming  to  the  Congress.  So  she  has  had  experience  both 
in  State  government,  here  in  Washington,  and  also  worked  as  an 
aide  to  Senator  Harold  Hughs,  a  deeply  respected  Senator  from 
Iowa. 

She  has  had  a  lot  of  community  activities  which  the  resume 
clearly  points  out,  and  a  number  of  publications.  This  is  a  person 
who  brings  a  real  expertise  to  the  question  of  criminal  law  and  the 
rights  and  obligations  and  responsibilities  of  defendants,  which  is 
going  to  be  so  important  for  the  remainder  of  this  century  and  into 
the  future. 


11 

So,  without  question,  Mr.  Chairman  and  Senator  Cohen,  I  enthu- 
siastically recommend  both  of  these  nominees.  I  would  just  point 
out  that  Mr.  Melancon  also  has  the  entire  Parish  of  Avoyelles  in 
the  back  of  me  in  the  audience.  It  is  a  national  holiday  back  home, 
and  I  certainly  want  to  join  in  that  holiday. 

Senator  KoHL.  Thank  you  very  much.  Senator  Breaux. 

Mr.  Jefferson. 

STATEMENT  OF  HON.  WILLIAM  J.  JEFFERSON,  A  REPRESENT- 
ATIVE IN  CONGRESS  FROM  THE  STATE  OF  LOUISIANA 

Mr.  Jefferson.  Mr.  Chairman  and  members  of  the  committee, 
I  am  pleased  to  join  with  Senator  Breaux  and  Senator  Johnston  in 
his  absence  in  support  of  these  two  outstanding  candidates. 

I  have  come  principally  to  talk  about  Ginger  Berrigan,  because 
she  is  a  constituent  of  mine  and  resides  in  New  Orleans,  a  place 
that  I  represent.  But  I  want  to  take  a  moment  to  add  my  voice  of 
support  to  that  of  Senator  Breaux  for  Tucker  Melancon,  who  I  have 
known  for  a  good  long  time. 

Mr.  Justice  Holmes  said  something  which  comes  to  mind  now, 
and  that  is  that  the  life  of  the  law  is  not  logic,  it  is  experience.  A 
judge  ought  to  bring  a  kind  of  breath  of  experience  to  the  court,  to 
permit  him,  as  Senator  Breaux  has  said,  to  understand  the  varied 
cultures  and  backgrounds  and  make  sound  decisions  based  on  his 
ability  to  identify  with  the  people  who  appear  before  his  court. 

My  experience  with  Tucker  was  as  a  legislator  when  I  was  in  the 
State  Senate  of  Louisiana  principally,  and  he  worked  to  bring  the 
African-American  population  in  our  State  into  the  mainstream  of 
the  Democratic  Party.  His  work  is  well  regarded  by  all  the  folks  in 
our  State,  but  particularly  by  those  of  us  who  were  trying  to  find 
a  way  to  make  our  party  more  open  and  more  cooperative  and  more 
supportive  of  some  of  the  aspirations  of  the  African-American  com- 
munity. 

So  I  am  proud  to  be  a  part  of  this  nomination  process  and  to  sup- 
port his  nomination,  as  well. 

Turning  to  Ginger  Berrigan,  I  believe  she  will  be  an  excellent  ad- 
dition to  the  Court  for  the  Eastern  District  of  Louisiana,  and  I  ap- 
plaud President  Clinton  for  nominating  her.  Our  district  court  has 
had  a  long  list  of  distinguished  jurists,  judges  such  as  J.  Skelly 
Wright,  Herbert  Christianberry,  Fred  Casserbry,  Fred  Hebee,  Lan- 
sing Mitchell,  and  Alvin  Rubin,  for  whom  I  had  the  pleasure  of 
clerking  years  ago,  just  a  few  of  the  outstanding  judges  who  served 
on  this  court.  I  am  convinced  that  Ginger  Berrigan  will  serve  in  the 
tradition  of  these  outstanding  jurists. 

Mr.  Chairman,  I  have  known  Ginger  Berrigan  for  quite  a  few 
years.  She  has  a  well-earned  reputation  for  competency  and  integ- 
rity in  our  legal  community,  and  I  feel  certain  that  she  will  distin- 
guish herself  as  a  scholar  on  the  bench. 

But  as  Judge  Alvin  Rubin  used  to  say  so  often,  a  judge  must  be 
more  than  a  thinking  machine,  a  judge  must  have  an  unswerving 
commitment  to  equsd  justice  under  the  law.  In  this  regards.  Ginger 
Berrigan  has  few  peers.  She  is  a  virtual  champion  of  civil  liberties 
and  civil  rights  for  all  people.  She  has  spent  her  life  confronting 
discrimination  and  winning. 


12 

Along  the  way,  she  has  had  the  grace  and  the  charm  to  turn  foe 
to  friend  and,  at  the  very  least,  to  earn  the  respect  of  her  adversar- 
ies. Ginger  has  that  rare  combination  of  brilliance,  compassion  and 
experience  that  makes  her  unusually  well-suited  for  the  Federal 
court.  She  will  do  more  than  add  diversity  to  the  court.  She  will 
make  a  real  difference  in  the  dispensation  of  justice  there. 

For  these  reasons,  I  firmly  urge  this  committee  to  recommend 
Ginger  Berrigan  to  the  full  Senate  for  confirmation  to  the  Federal 
District  Court  in  New  Orleans. 

Mr.  Chairman,  I  appreciate  the  opportunity  to  appear  before  you 
and  the  committee,  and  I  would  be  glad  to  answer  any  questions 
you  might  have.  But  I  think  John  Breaux  probably  covered  every- 
thing that  needed  to  be  dealt  with  here  today. 

Senator  KoHL.  We  thank  you,  Mr.  Jefferson  and  Senator  Breaux. 
They  are  wonderful  introductions,  and  we  will  get  back  to  you  folks 
in  just  as  minute. 

We  would  now  like  to  call  Judge  Judith  Rogers  to  the  stand.  She 
has  been  nominated  to  be  circuit  court  judge  for  the  District  of  Co- 
lumbia Circuit  Court  of  Appeals. 

Judge  Rogers,  would  you  raise  your  right  hand:  Do  you  swear 
that  the  testimony  you  shall  give  in  this  proceeding  shall  be  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  so  help  you  Grod? 

Judge  Rogers.  I  do. 

TESTIMONY  OF  HON.  JUDITH  ANN  WILSON  ROGERS,  OF  WASH- 
INGTON, DC,  TO  BE  U.S.  CIRCUIT  JUDGE  FOR  THE  DISTRICT 
OF  COLUMBIA 

Senator  Kohl.  How  would  you  like  to  introduce  some  members 
of  your  family  to  us  at  this  time,  please. 

Judge  Rogers.  Thank  you,  Mr.  Chairman.  I  want  to  thank  you 
for  chairing  these  hearings. 

My  only  regret  is  that  my  parents  are  unable  to  be  with  me 
today.  Hazel  Thomas  Wilson  and  John  Louis  Wilson,  Jr.  They  guid- 
ed me  and  their  guidance  continues  to  help  me  address  my  task. 

I  am  honored,  however,  to  have  with  me  today  members  of  my 
court,  members  of  the  District  of  Columbia  Court  of  Appeals,  the 
Hon.  John  M.  Ferren,  the  Hon.  John  M.  Steadman,  the  Hon.  John 
Kern,  and  the  Hon.  James  A.  Belson. 

I  would  also  like  to  acknowledge  the  presence  of  my  hard-work- 
ing secretary,  Denise  Lewis,  my  law  clerks,  and  my  special  assist- 
ant. 

Thank  you,  Mr.  Chairman. 

Senator  KoHL.  Thank  you. 

Judge  Rogers,  if  you  are  confirmed  as  an  appellate  judge,  at 
some  point  you  may  be  faced  with  applying  a  Supreme  Court  prece- 
dent with  which  you  do  not  personally  agree.  Would  you  consider 
yourself  bound  to  act  by  such  a  precedent? 

Judge  Rogers.  Yes. 

Senator  KOHL.  Of  course,  you  will  also  be  faced  with  cases  in- 
volving issues  on  which  the  Supreme  Court  has  not  ruled.  In  many 
of  those  cases,  however,  you  will  have  decisions  from  the  District 
of  Columbia  Circuit  on  which  to  rely.  Under  what  circumstances, 
if  any,  do  you  believe  that  an  appellate  judge  should  overturn 
precedent  within  his  or  her  own  circuit? 


13 

Judge  Rogers.  I  would  be  bound  by  the  opinions  of  the  circuit, 
and  only  in  those  extraordinary  cases  where  the  en  banc  court 
overruled  a  decision  by  a  three-judge  panel  would  I  be  in  a  position 
not  to  follow  an  outstanding  decision  of  the  circuit. 

Senator  KOHL.  Judge  Rogers,  as  chief  judge  of  the  District  of  Co- 
lumbia Court  of  Appeals,  you  delivered  a  speech  discussing  civil 
justice  reform  and  the  problems  facing  the  District  of  Columbia 
court  system. 

As  you  know,  Congress  passed  the  Civil  Justice  Reform  Act  in 
1990.  The  goal  of  this  legislation  is  to  streamline  the  judicial  proc- 
ess and  to  make  it  more  accessible,  affordable,  and  fair.  In  your 
view,  what  role  do  judges  play  in  controlling  the  pace  and  the  con- 
duct of  litigation? 

Judge  Rogers.  Mr.  Chairman,  as  my  speech  indicated,  in  the 
District  of  Columbia  we  have  taken  a  number  of  steps  to  ensure 
that  judges  do  become  actively  involved  in  the  pace  and  control  of 
litigation.  For  example,  in  our  trial  court,  which  is  a  trial  court  of 
general  jurisdiction,  the  chief  judge  of  that  court  shifted  from  the 
former  system  to  an  individual  calendar  system  in  the  civil  divi- 
sion, so  that  a  judge  keeps  the  case  from  the  beginning  to  the  end. 

In  addition,  case  management,  case  tracking  has  been  a  part  of 
the  trial  court  and,  indeed,  of  the  appellate  court  as  a  way  of  mak- 
ing certain  that  the  cases  move  according  to  schedule.  We  have 
spent  considerable  time  on  studies,  as  well,  on  the  application  of 
computer  technology  to  assist  the  judges,  as  well  as  judicial  train- 
ing. And  I  think  the  type  of  individual  calendar  and  case  manage- 
ment successes  in  the  trial  court  and,  indeed,  in  the  appellate  court 
indicate  that  individual  judges  can  make  a  real  difference  in  the 
pace  and  conduct  of  litigation. 

Senator  KoHL.  Well,  what  kind  of  steps  will  you  take  to  best  con- 
trol your  own  docket? 

Judge  Rogers.  As  an  appellate  judge,  I  have  a  number  of  proce- 
dures that  I  trust  I  will  apply  on  the  Federal  court,  as  I  have  on 
the  District  of  Columbia  Court  of  Appeals.  I  keep  a  very  close  tab 
of  the  cases  that  are  assigned  to  me  and  the  cases  that  I  am  a 
member  of  the  division.  I  have  the  assistance  of  a  law  clerk  to  as- 
sure that  I  get  timely  legal  memoranda.  I  assume  that  those  same 
procedures  would  work  well  on  the  circuit  court,  and  I  think  my 
colleagues  would  attest  to  the  fact  that  I  am  timely  in  producing 
my  opinions  and  commenting  on  their's. 

Senator  KOHL.  Judge  Rogers,  since  the  inception  of  the  Federal 
Sentencing  Guidelines  developed  by  the  Sentencing  Commission 
have  been  the  subject  of  debate,  largely  because  of  concerns  about 
mandatory  minimum  sentences — in  fact,  one  district  court  judge  re- 
signed, because,  according  to  press  accounts,  he  felt  that  the  man- 
datory guidelines  were  too  harsh  and  too  rigid. 

As  a  Federal  judge,  what  would  you  do  if  you  were  faced  with 
a  situation  where  the  sentencing  guidelines  called  for  you  to  im- 
pose a  sentence  that  you  felt  was  too  harsh? 

Judge  Rogers.  I  would  be  obligated  to  apply  the  guidelines,  Mr. 
Chairman.  And  certainly,  as  an  appellate  judge  reviewing  a  district 
court  judge's  application  of  the  guidelines,  I  would  be  obliged  to  re- 
view his  or  her  apphcation,  but  to  enforce  the  guidelines. 

Senator  Kohl.  I  thank  you  very  much,  Judge  Rogers. 


14 

Judge  Rogers.  Thank  you. 
Senator  KOHL.  Senator  Cohen. 

OPENING  STATEMENT  OF  SENATOR  COHEN 

Senator  COHEN.  Thank  you,  Mr.  Chairman. 

Judge  Rogers,  welcome. 

Judge  Rogers.  Thank  you. 

Senator  COHEN.  I  would  like  to  explore  some  of  your  ideas  about 
the  interpretation  of  the  Constitution.  I  think  you  have  decided  at 
least  six  cases  involving  constitutional  issues,  three  of  which  in- 
volved search  and  seizure. 

One  of  them  happened  to  be  fairly  controversial.  I  think  it  was 
Cousart  v.  United  States,  right? 

Judge  Rogers.  I  am  familiar  with  the  case.  I  am  not  sure  I  agree 
with  the  characterization. 

Senator  Cohen.  As  being  controversial? 

Judge  Rogers.  Yes. 

Senator  Cohen.  Would  you  describe  what  the  facts  were  of  that 
case? 

Judge  Rogers.  As  I  recall,  Senator  Cohen,  in  that  particular  case 
a  police  officer  observed  a  car  traveling  at  30  miles  an  hour.  The 
car  made  a  wide  U-turn,  then  the  car  began  going  at  45  miles  an 
hour.  At  that  point,  the  police  officer  put  his  emergency  lights  on 
the  hood  of  the  car  and  followed  the  car.  The  car  proceeded  for  two 
long  blocks,  which  the  officer  testified  was  tantamount  to  about  six 
blocks.  The  car  stopped  of  its  own  accord.  The  officer  had  radioed 
for  help.  The  officer  approached  the  car  driver,  his  gun  bolstered, 
asked  the  driver  to  step  out,  and  took  the  driver  to  his  car  about 
25  feet  away. 

A  second  police  car  arrived  on  the  scene.  One  of  the  officers,  with 
a  rifle  in  his  hand,  on  his  knee  and  pointed  upward,  told  the  pas- 
senger in  the  car  to  reach  for  the  ceiling.  The  trial  court  found,  and 
the  government  did  not  dispute  on  appeal,  that  the  passenger  had 
been  seized. 

The  government  asked  our  court  to  extend  an  opinion  of  the  U.S. 
Supreme  Court  that  applied  to  car  drivers  who  were  stopped  for 
traffic  violations  to  passengers  of  cars.  Our  court  declined  to  do 
that  and,  instead,  a  majority  of  the  court  decided  that,  contrary  to 
the  requirements  of  the  long-standing  and  often  reaffirmed  decision 
of  Terry  v.  Ohio,  limiting  the  conditions  under  which  a  police  officer 
may  seize  a  citizen,  that  the  subjective  view  of  the  officer  and  his 
concern  for  personal  safety  was  a  sufficient  ground  to  uphold  the 
seizure  of  a  gun  that  was  found  in  the  car. 

That  is  my  recollection,  Senator,  of  the  facts. 

Senator  Cohen.  Did  you  write  that  opinion? 

Judge  Rogers.  I  wrote  an  opinion  when  it  was  before  a  three- 
judge  division.  The  court  decided  to  hear  the  case  en  banc.  I  wrote 
a  separate  dissenting  opinion. 

Senator  COHEN.  That  decision  was  reversed  on  appeal,  was  it 
not? 

Judge  Rogers.  That  is  the  effect  of  it,  that  is  correct. 

Senator  Cohen.  I  am  curious  about  the  interpretation  of  it,  the 
very  sterile  factual  statement  you  just  gave.  What  was  the  neigh- 
borhood like?  Is  that  a  factor  that  should  be  taken  into  account, 


15 

when  a  court  is  making  a  decision  dealing  with  a  police  officer's  on- 
the-spot  type  of  decisions? 

For  example,  one  of  our  panelists  this  morning,  in  introducing 
Ms.  Berrigan,  I  believe,  quoted  from  Holmes  who  said  the  life  of 
the  law  has  not  been  logic,  but  that  of  experience.  He  went  on  to 
say  that  a  page  of  history  is  worth  more  than  a  volume  of  logic. 

One  thing  that  many  critics  of  our  courts  today  seem  to  feel  is 
that  there  is  an  awftil  lot  of  logic,  but  not  a  good  deal  of  experience 
is  being  reflected  by  the  courts'  decisions  in  many  cases. 

For  example,  if  you  have  a  situation  in  which  there  is  a  high- 
crime  neighborhood  and  in  which  there  were  seven  police  officers 
killed  during  the  preceding  30  days,  would  that  be  a  factor  that  the 
court  should  take  into  account  in  examining  an  officer's  reasonable 
actions  under  the  circumstances  in  wishing  to  search  a  car  for  a 
weapon? 

Judge  Rogers.  The  issue  before  me  as  an  appellate  judge  was  to 
apply  the  decisions  of  the  Supreme  Court.  The  Supreme  Court  has 
decided  that  there  are  certain  limitations  on  officers  when  they 
seize  citizens.  I  indicated  in  my  opinion  that,  of  course,  officers 
have  to  take  reasonable  steps  to  protect  themselves  from  safety, 
protect  themselves  so  that  they  are  safe.  Of  course,  they  are  acting 
on  our  behalf  to  protect  all  of  us. 

That  was  not  the  issue  in  the  case.  The  issue  was  where  the  Su- 
preme Court  has  set  out  a  test,  is  not  the  appellate  court  obligated 
to  faithfully  apply  the  test  enunciated  by  the  Supreme  Court, 
whether  or  not  we  personally  agree  with  it.  And  in  my  view,  it  was 
our  obligation  and  that  is  why  I  wrote  my  opinion  as  I  did. 

Senator  COHEN.  In  other  words,  you  were  simply  applying  the 
doctrine  of  stare  decisis,  and  that  did  not  reflect  your  personal 
opinion  in  any  way  in  terms  of  whether  you  felt  the  officer  acted 
reasonably  under  the  circumstances? 

Judge  Rogers.  The  issue  was  did  the  officer  have  articulable 
suspicion  that  the  passenger  engaged  in  unusual  conduct  such  that 
the  officer  could  in  his  experience  reasonably  conclude  that  crimi- 
nal activity  was  afoot.  The  officer  never  offered  such  testimony,  the 
trial  judge  never  made  such  findings,  the  officer  said  he  took  out 
his  shotgun  because  he  was  concerned  about  his  safety.  It  had 
nothing  to  do  with  anything  the  passenger  had  done. 

Now,  as  an  appellate  court,  I  am  obligated,  where  it  is  conceded 
by  the  Grovemment,  where  the  trial  court  has  found  that  a  citizen 
was  seized,  I  am  obUgated,  as  an  appellate  judge,  to  apply  the  test 
that  the  Supreme  Court  has  announced  and  repeatedly  reaffirmed, 
and  that  is  all  I  did. 

Senator  COHEN.  We  talk  about  constitutional  principles.  I  think 
you  would  probably  agree  that  the  Constitution  as  written  is  not 
locked  in  the  concrete  of  the  originsil  time  in  which  it  was  formu- 
lated. You  would  agree  with  that,  would  you  not?  It  evolves  over 
a  period  of  time  in  terms  of  our  interpretation,  as  we  become  either 
more  sophisticated  or  more  morally  conscious  of  certain  practices? 
There  is  an  evolutionary  interpretation  of  what  was  originally  de- 
fined, at  least,  in  the  Constitution.  Would  you  agree  with  that  gen- 
eral statement? 

Judge  Rogers.  My  obUgation  as  an  appellate  judge  is  to  apply 
precedent.  Some  of  the  debates  which  I  have  heard  and  to  which 


16 

I  think  you  may  be  alluding  are  interesting,  but  as  an  appellate 
judge,  my  obligation  is  to  apply  precedent.  And  so  the  interpreta- 
tions of  the  Constitution  by  the  U.S.  Supreme  Court  would  be  bind- 
ing on  me. 

Senator  COHEN.  In  the  absence  of  precedent? 

Judge  Rogers.  In  what  context? 

Senator  Cohen.  You  are  now  faced  with  a  constitutional  issue  or 
interpretation  of  the  Constitution  that  the  Court  has  not  ruled  on 
directly  or  has  ruled  on  directly  50  or  60  or  100  years  before.  The 
case  has  not  come  up  specifically  on  that  point,  and  you  are  not 
necessarily  bound  by  precedent  in  that  case  or  it  does  not  exist. 

The  question  I  have  is  do  you  believe  that  the  Constitution  is  in 
fact  something  that  is  subject  to  interpretation  in  a  different  time 
and  a  different  era?  As  society's  attitudes  change  about  certain 
mores  and  practices,  the  interpretation  of  those  original  words  also 
change.  I  think  you  would  concede  that,  would  you  not? 

Judge  Rogers.  When  I  was  taking  my 

Senator  Cohen.  Unless  you  are  prepared  to  endorse  Judge  Bork's 
interpretation  of  the  original  meaning  of  the  Constitution,  which 
was  severely  criticized,  because  he  seemed  to  be  articulating  a  phi- 
losophy that  existed  a  century  or  so  before. 

Judge  Rogers.  When  I  was  taking  my  master's  in  judicial  proc- 
ess at  the  University  of  Virginia  Law  School,  one  of  the  points  em- 
phasized was  the  growth  of  our  common  law  system  based  on  the 
English  common  law  judge  system.  And  my  opinions,  I  think  if  you 
look  at  them,  reflect  that  where  I  am  presented  with  a  question  of 
first  impression,  that  I  look  to  the  language  of  whatever  provision 
we  are  addressing,  that  I  look  to  whatever  debates  are  available, 
that  I  look  to  the  interpretations  by  other  Federal  courts,  that  I 
look  to  the  interpretations  of  other  State  courts,  and  it  may  be  nec- 
essary, as  well,  to  look  at  the  interpretations  suggested  by  com- 
mentators. And  within  that  framework,  which  I  consider  to  be  a 
discipline,  that  I  would  reach  a  view  in  a  case  of  first  impression. 

Senator  Cohen.  Do  social  mores  play  any  role  in  your  interpreta- 
tion of  a  constitutional  provision? 

Judge  Rogers.  I  am  not  sure  I  know  what  you  mean.  Senator. 

Senator  COHEN.  What  I  mean  is  that,  as  we  look  at  civil  rights, 
for  example,  over  a  period  of  time,  we  have  expanded  civil  rights 
in  this  country,  and  I  think  justifiably  so.  We  have  expanded  inter- 
pretations of  provisions  of  search  and  seizure  over  a  period  of  time. 
As  we  have  become  more  sophisticated,  our  interpretation  of  the 
Constitution  has  changed.  Justice  Holmes  or  one  of  his  prede- 
cessors might  have  interpreted  the  specific  language  of  the  Con- 
stitution differently. 

The  question  I  am  really  asking  is:  What  happens  when  we  go 
the  other  way?  What  happens  when  a  society  is  so  overwhelmed 
with  fear  of  crime  that  they  decide  that  sterner  actions  have  to  be 
taken?  Take  for  example,  stop  and  frisk  laws.  I  assume  you  might 
have  some  problems  with  that  particular  policy  in  the  practice  of 
certain  police.  I  notice  that  Virginia  just  this  year  started  the  prac- 
tice of  setting  up  roadblocks  during  holiday  periods,  during  Christ- 
mas and  New  Year's  Eve,  to  stop  vehicles  to  check  them  for  the 
driver's  sobriety. 


17 

So  we  are  seeing  concern  about  what  is  taking  place  in  society, 
and  I  am  asking  you  whether  or  not  that  should  or  would  have  any 
influence  on  your  particular  interpretation  of  the  Constitution. 

Judge  Rogers.  As  an  appellate  judge,  I  have  been  faced  with  a 
roadblock  case,  and  I  relied  on  Supreme  Court  decisions  as  to  what 
is  the  proper  scope  for  a  roadblock.  I  would  do  the  same  type  of 
thing  with  other  issues.  That  is  my  role  as  an  appellate  judge,  to 
apply  precedent  and  look  for  the  closest  analogy  I  can  find. 

Senator  Cohen.  A  couple  more  questions.  What  is  your  opinion 
about  the  minimum  mandatory  sentencing  provisions  that  Con- 
gress enacts?  Senator  Kohl  asked  you  about  this.  What  is  your  feel- 
ing, as  a  judge,  as  to  their  utility? 

Judge  Rogers.  I  am  aware,  Senator,  of  some  of  the  debate  on  the 
pros  and  cons,  and  certainly  before  I  was  a  judge  I  was  engaged 
in  comment  on  them.  But  as  a  judge,  I  have  been  dealing  with 
them  strictly  from  the  point  of  view  of  legal  challenges  to  them.  I 
have  sat  on  a  case  where  a  mandatory  minimum  sentence  was 
challenged,  and  we  upheld  it. 

Senator  Cohen.  What  I  am  asking  you  is  not  whether  you  think 
they  are  constitutional  or  should  be  upheld,  but  from  your  point  of 
view  as  a  judge,  what  is  their  effectiveness?  There  is  a  good  deal 
of  controversy  right  now  in  terms  of  the  mandatory  guidelines  that 
were  adopted  back  in  the  early  1980's  to  minimize  judicial  discre- 
tion in  the  imposition  of  sentences.  Now  we  have  Federal  manda- 
tory sentencing  provisions,  and  some  argue  that  they  are  now  in 
conflict  and  we  are  back  to  a  chaotic  situation.  I  am  wondering,  not 
about  your  interpretation  of  their  constitutionality,  but  your  feeling 
about  their  effectiveness,  as  a  judge. 

Judge  Rogers.  Well,  as  a  judge,  I  have  not  been  exposed  to  the 
Federal  sentencing  guidelines.  We  do  not  have  such  guidelines  in 
the  District  of  Columbia.  We  do  have  mandatory  minimum  sen- 
tences and  I  have  enforced  them,  as  I  mentioned,  when  the  issue 
has  arisen. 

Senator  Cohen.  One  final  question:  In  the  State  of  the  Union 
Message  this  week.  President  Clinton  supported  a  provision  which 
is  now  commonly  known  as  three  strikes  you  are  out,  or  actually 
three  strikes  and  you  are  in.  What  is  your  reaction  to  such  a  pro- 
posal? Is  that  something  you  would  favor? 

Judge  Rogers.  As  an  appellate  judge,  my  obligation  is  to  enforce 
the  laws  that  the  Congress  passes  or,  where  I  am  now,  that  the 
District  of  Columbia  Council  passes. 

Senator  COHEN.  Assuming  it  is  constitutional? 

Judge  Rogers.  Assuming  it  is  constitutional. 

Senator  COHEN.  I  think  that  is  all  I  have  right  now. 

Senator  KoHL.  Thank  you  very  much,  Senator  Cohen. 

Thank  you  much.  Judge  Rogers. 

Judge  Rogers.  Thank  you,  Mr.  Chairman. 

Senator  KOHL.  We  would  like  now  to  call  Judge  Michael  Ponsor 
to  the  stand.  Judge  Ponsor  has  been  nominated  to  be  district  judge 
for  the  District  of  Massachusetts.  Would  you  please  raise  your  right 
hand:  Do  you  swear  that  the  testimony  that  you  shall  give  in  this 
proceeding  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  so  help  you  God? 

Judge  Ponsor.  I  do. 


18 

TESTIMONY  OF  HON.  MICHAEL  A.  PONSOR,  OF  MASSACHU- 
SETTS, TO  BE  U.S.  DISTRICT  JUDGE  FOR  THE  DISTRICT  OF 
MASSACHUSETTS 

Senator  KOHL.  Thank  you  very  much,  Judge  Ponsor. 

If  you  have  members  of  your  family  here,  we  would  love  to  meet 
them. 

Judge  Ponsor.  I  do.  I  am  proud  to  have  my  mother  Yvonne 
Ponsor  here  with  me  this  afternoon,  and  my  sister,  Valerie 
Pritcher.  My  father  Ward  Ponsor  is  not  able  to  be  here,  but  he  is 
here  in  spirit.  And  my  three  children,  my  oldest  Christian  is  in 
California  and  is  unable  to  be  here,  and  my  two  little  ones,  Ann 
and  Joseph,  who  are  10  and  8,  unfortunately  are  back  in  Massa- 
chusetts with  the  flu.  Otherwise,  they  would  be  here,  as  well. 

Senator  Kohl.  Very  good. 

Judge  Ponsor,  you  have  been  a  magistrate  for  a  number, of  years 
now.  What  do  you  perceive  to  be  the  primary  differences  between 
your  current  position  and  a  position  as  a  Federal  district  court 
judge? 

Judge  Ponsor.  I  think  there  are  probably  two  primary  dif- 
ferences that  I  will  be  facing.  One  will  be  the  increased  caseload 
and  responsibilities  of  the  U.S.  district  court  judge,  and  the  other 
will  be  the  responsibility  for  the  conduct  of  felony  jury  trials,  of 
which  a  magistrate  judge  is  not  permitted  to  conduct.  I  have  con- 
ducted misdemeanor  trials  and  a  large  number  of  civil  trials,  but 
I  have  not  sat  on  a  felony  jury  trial,  and  I  think  that  will  be  a  dif- 
ference. 

Senator  Kohl.  Well,  what  areas  of  the  law  do  you  think  you  will 
need  to  study  up  on  to  get  up  to  speed,  should  you  be  confirmed 
for  this  position? 

Judge  Ponsor.  Well,  I  feel  fortunate,  because,  as  a  magistrate 
judge  in  a  single-judge  court  in  our  rural  area  of  Massachusetts,  I 
have  handled  many  of  the  responsibilities  of  district  court  judges 
already.  The  one  area  where  I  believe  that  I  will  need  to  look  for- 
ward to  help  from  the  Federal  Judicial  Center  and  from  my  col- 
leagues on  the  court  will  be  in  the  area  of  presiding  over  felony 
jury  trials,  and  I  think  that  would  be  the  main  area  of  getting  up 
to  speed. 

I  will  also  be  responsible  for  handling  bankruptcy  appeals,  as  a 
district  court  judge,  which  was  not  part  of  my  work  as  a  magistrate 
judge,  and  I  think  that  is  another  area  where  I  will  be  putting  in 
some  particularly  hard  work  to  get  myself  ready. 

Senator  KOHL.  Judge  Ponsor,  your  response  to  the  committee 
questionnaire  indicates  that  throughout  your  career  you  have  been 
committed  to  the  rights  of  the  mentally  ill.  From  your  experience, 
what  have  you  learned  about  the  problems  facing  lawyers  dealing 
with  the  issues  that  affect  the  mentally  ill? 

Judge  Ponsor.  Well,  I  think  there  are  probably  a  couple  of  areas. 
One  is  the  separate  area  of  actual  legal  rights,  which  can  be  very 
complex,  and  that  has  to  do  with  what  sorts  of  procedural  protec- 
tions may  be  afforded  to  people  who  are  suffering  from  mental  ill- 
ness, and  what  the  court's  responsibilities  are. 

There  is  a  second  aspect  to  it,  and  that  has  to  do  with  community 
acceptance,  how  much  can  we  ask  of  our  communities,  how  much 
can  we  properly  ask  of  our  communities,  and  I  believe  that  is  an- 


19 

other  area  where  work  needs  to  be  done  by  advocates  on  behalf  of 
the  mentally  ill,  and  people  really  need  to  have  a  dialog  about  what 
is  really  best  for  people  who  suffer  from  these  disabilities  and  what 
is  best  for  the  community. 

Senator  KOHL.  What  can  Congress  do,  in  your  opinion,  to  assist 
in  assuring  that  the  mentally  ill  get  adequate  legal  representation? 

Judge  PONSOR.  Well,  I  think  probably  the  primary  thing  is  to 
make  sure  that  the  judges  who  come  before  you  are  sensitive  to  the 
problems,  and  make  sure  there  is  sufficient  funding  for  such  orga- 
nizations as  the  Legal  Services  Corporation,  so  that  they  will  be 
able  to  assist  problems.  As  you  know,  this  population  is  largely  in- 
digent, and  they  suffer  from  a  lot  of  the  difficulties  that  indigent 
people  suffer  from  generally,  and  I  think  probably  those  two  areas 
would  be  the  primary  ones  that  come  to  mind  for  me. 

Senator  KOHL.  Judge,  you  will  probably  be  faced  with  cases  in- 
volving issues  on  which  the  first  circuit  has  not  ruled.  How  will  you 
approach  cases  on  which  the  circuit  has  not  ruled,  and  for  which 
there  is  no  precedent? 

Judge  PONSOR.  Well,  if  it  has  to  do  with  statutory  construction, 
I  would  begin  by  looking  carefully  at  the  statute  and  at  the  legisla- 
tive history  of  the  statute.  If  it  does  not  involve  actual  statutory 
construction,  then  I  will  try  to  look  at  other  districts  or  other  cir- 
cuits which  might  have  had  cases  in  the  area,  although  my  own  cir- 
cuit or  district  might  not  have  handed  down  any  decisions. 

If  I  can't  find  any  parallel  decisions  from  other  districts  or  other 
circuits,  I  will  try  to  find  analogous  situations  and  reason  by  anal- 
ogy. If  I  cannot  find  that,  then  I  am  going  to  have  to  go  back  to 
basic  principles  and  try  to  remember  that  what  we  are  ultimately 
trying  to  do  as  judges  is  do  something  which  is  fair. 

Senator  COHEN.  Why  are  you  interested  in  this  appointment? 

Judge  PONSOR.  Well,  I  spent  my  whole  life  and  have  found  my 
life  enriched  from  the  time  I  was  an  undergraduate  in  high  school 
in  public  service,  and  I  seem  to  have  a  bent  for  this  kind  of  work 
which  permits  me  to  contribute  something  to  my  community. 

I  love  western  Massachusetts.  I  love  the  people  of  western  Mas- 
sachusetts, and  this  seems  to  be  the  best  way  that  I  can  give  some- 
thing back  for  the  enormous  privileges  that  I  have  enjoyed  in  my 
life,  and  I  really  look  forward  to  doing  that. 

Senator  KOHL.  Very  good.  Thank  you  very  much. 

Senator  Cohen. 

Senator  Cohen.  Protocol  does  not  permit  you  to  ask  us  the  same 
question,  I  might  point  out.  [Laughter.] 

Let  me  follow  up  with  just  a  couple  of  questions.  You  mentioned 
that  in  trying  to  arrive  at  an  appropriate  decision,  you  would  look, 
among  other  things,  at  legislative  history.  What  do  you  look  for  in 
legislative  history?  I  am  saying  this  by  way  of  a  caution  to  you.  You 
are  aware  that  Justice  Scalia  does  not  hold  a  very  high  opinion  of 
legislative  history  and,  as  a  matter  of  fact,  he  maintains  it  is  a  fig- 
ment of  our  imagination.  I  would  be  interested  in  hearing  what  you 
would  look  for  in  the  way  of  legislative  history. 

Judge  PONSOR.  I  agree  that  one  has  to  be  careful  and  sensitive, 
when  you  are  getting  into  legislative  history,  and  one  hopes,  of 
course,  that  the  statute  is  clear  on  its  face  and  you  do  not  have  to 
get  into  it. 


20 

But  I  do  find  that  it  is  sometimes  helpful  to  look  at  the  congres- 
sional debates  or  the  committee  reports  that  describe  a  particular 
piece  of  legislation,  and  that  that  is  sometimes  helpful.  That  is 
where  I  go,  to  the  Congressional  Record,  when  I  am  looking  at 

Senator  COHEN.  Do  you  place  more  emphasis  on  what  a  commit- 
tee chairman  or  ranking  member  says  than  you  would  upon  some 
nonmember  of  the  committee?  Because,  as  you  know,  a  great  deal 
of  debate  takes  place  on  the  floor,  but  following  the  debate,  mem- 
bers insert  extensive  materials  that  are  not  uttered  on  the  floor, 
but  are  simply  inserted  for  the  record,  which  may  lead  you  down 
a  labyrinth  course  to  a  dead  end.  So  do  you  place  any  priorities  in 
terms  of  who  you  would  look  to  in  the  way  of  trying  to  determine 
what  Congress  really  intended? 

Judge  PONSOR.  To  be  honest,  I  try  to  look  at  the  whole  record, 
and  where  it  is  so  muddy  that  I  cannot  draw  a  real  conclusion  from 
it,  then  I  just  have  to  go  elsewhere.  But  it  is  remarkable  to  me  that 
there  often  is  unanimity  about  a  particular  intent,  and  when  you 
can  find  that,  I  think  it  is  very  helpful. 

Senator  COHEN.  The  October  1993  issue  of  the  Massachusetts 
Lawyer  Weekly  reported  your  decision  in  the  FDIC  v.  Huntington 
Bank  Corporation,  and  the  quote  was  that  it  underscores  the  effec- 
tiveness of  the  D'Oench  Duhme  doctrine  in  collection  actions  by  the 
Federal  Deposit  Insurance  Corp.  and  its  successors  in  interest.  In 
other  words  only  those  agreements  in  writing  as  authorized  by  the 
board  of  directors  of  a  particular  bank  will  be  regarded  as  being  en- 
forceable. Obviously,  every  one  of  us  has  an  interest  in  seeing  to 
it  that  the  FDIC  and  RTC  in  fact  have  this  tool  at  their  disposal 
in  order  to  protect  the  public's  interest. 

The  question  I  have  is,  what  about  situations  where  you  have 
small  vendors?  You  might  have  a  plumber  or  a  window  washer, 
and  they  do  not  have  enforceable  agreements  and  they  are  pre- 
cluded under  the  D'Oench  Duhme  doctrine  from  bringing  lawsuits. 
Do  you  see  any  injustice  in  that  particular  case,  where  you  have 
the  small  vendors  who  do  not  operate  on  that  basis? 

Judge  PONSOR.  I  believe  there  is  a  potential  for  injustice.  The 
D'Oench  Duhme  doctrine  in  section  1823  is  one  of  those  two-hand- 
ed arguments.  On  the  one  hand,  you  want  the  FISC  to  be  pro- 
tected, you  want  the  FDIC  to  be  protected  from  the  effect  of  secret 
side  agreements. 

On  the  other  hand,  there  is  a  very  real  potential  for  unfairness. 
The  Huntington  case  for  me,  fortunately,  fell  right  in  the  heartland 
of  D'Oench  Duhme.  It  wasn't  a  supplier.  It  was  a  situation  where 
there  was  a  promissory  note,  and  so  on,  and  I  felt  bound  by  the 
50-year-old  Supreme  Court  precedent  and  Congress'  statute.  But  I 
can  foresee  situations  where  the  D'Oench  Duhme  doctrine  may  con- 
ceivably be  overused,  and  I  think  we  need  to  be  sensitive  to  it. 

Senator  COHEN.  I  am  glad  to  hear  that.  I  introduced  a  bill  to  try 
to  correct  that,  as  a  matter  of  fact,  just  so  we  take  into  account  the 
little  folks  who  do  not  have  the  advantage  of  having  written  con- 
tracts. 

One  final  question:  Your  experience  has  been  rather  limited  in 
the  field  of  criminal  trials.  I  suspect  that  you  are  going  to  have  an 
increased  workload  in  that  regard.  What  are  you  going  to  be  doing 


21 

to  get  yourself  in  a  position  to  be  able  to  decide  these  kinds  of 
cases,  which  may  amount  to  a  flood  tide  in  the  coming  years? 

Judge  PONSOR.  I  have  two  things  in  my  background  which  will 
help  me.  One  was  that  I  was  a  criminal  defense  attorney  when  I 
was  in  private  practice,  and  I  tried  felony  cases  in  Federal  court 
as  a  practitioner. 

Second,  as  a  magistrate  judge,  I  have  presided  over  a  number  of 
evidentiary  hearings  involving  motions  to  dismiss  and  have  dealt 
with  all  of  the  preliminary  matters  right  up  to  trial  as  part  of  my 
responsibilities  as  a  magistrate  judge.  So  I  think  that  will  give  me 
a  leg  up,  so  to  speak.  Then,  second,  as  I  said  before,  in  fact  this 
Monday  I  am  going  to  Richmond  to  begin  a  week  of  hard  work  pre- 
paring for  what  I  hope  will  be  my  new  responsibilities.  I  think  that 
and  the  assistance  of  other  judges  will  give  me  all  the  hope  that 
I  will  need  to  get  ready. 

Senator  COHEN.  As  I  understand  it,  you  were  appointed  to  an  ad- 
visory group  in  Massachusetts,  Federal  District  Court,  Civil  Justice 
Reform  Committee 

Judge  PoNSOR.  Yes,  sir. 

Senator  Cohen  [continuing].  Which  made  recommendations 
about  implementing  the  Civil  Justice  Reform  Act  of  1990,  that  Sen- 
ator Kohl  mentioned? 

Judge  PoNSOR.  Yes. 

Senator  Cohen.  I  think  the  Massachusetts  group  went  quite  far 
in  terms  of  what  it  recommended.  The  question  is  what  rec- 
ommendation do  you  have  in  terms  of  trying  to  reform  the  rules? 

Judge  PONSOR.  I  think,  first  of  all,  you  need  very  close  case  man- 
agement. When  I  was  appointed  in  1984  a  magistrate  judge  in 
Springfield,  we  had  over  800  pending  civil  cases.  I  am  happy  to  say 
that  we  now  have  approximately  330  pending  civil  cases,  and  I 
think  part  of  the  explanation  for  that  reduction  is  in  very  close  case 
management  by  the  judge.  I  am  a  hands-on  judge.  I  am  setting 
schedules,  I  am  assisting  in  settlement  all  the  time.  I  think  that 
is  very  important. 

I  think  our  new  local  rules  which  were  enacted  pursuant  to  the 
Civil  Justice  Reform  Act  and  the  changes  that  have  recently  come 
into  effect  in  the  Federal  Rules  of  Civil  Procedure  will  make  discov- 
ery a  lot  faster  and  a  lot  cheaper  for  a  lot  of  litigants,  and  I  think 
that  is  something  that  judges  should  rightly  have  on  their  mind. 
We  need  to  move  our  civil  cases  along  and  we  need  to  try  to  move 
them  along  in  a  way  which  reduces  expense,  so  that  our  Federal 
courts  remain  open  to  little  people,  ordinary  people,  as  well  as 
large  corporations. 

Senator  Cohen.  That  is  all  I  have,  Mr.  Chairman. 

Senator  KOHL.  Thank  you  very  much.  Senator  Cohen. 

Thank  you  very  much,  Judge  Ponsor.  You  are  excused. 

Judge  Ponsor.  Thank  you. 

Senator  KOHL.  I  am  going  to  be  leaving  this  hearing  right  now. 
I  have  enjoyed  being  here,  and  I  wish  all  the  nominees  the  very 
best  of  luck  and  good  fortune. 

Senator  Metzenbaum  is  going  to  be  sitting  in  my  stead.  Senator 
Metzenbaum. 

Senator  Metzenbaum  [presiding].  Our  next  nominee  is  Leslie 
Brooks  Wells. 


22 

Ms.  Wells,  do  you  solemnly  swear  to  tell  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  so  help  you  God? 
Judge  Wells.  I  do. 

TESTIMONY  OF  HON.  LESLEY  BROOKS  WELLS,  OF  OHIO,  TO  BE 
U.S.  DISTRICT  JUDGE  FOR  THE  NORTHERN  DISTRICT  OF  OHIO 

Senator  Metzenbaum.  Would  you  like  to  introduce  your  family 
and  perhaps  the  Campbells,  as  well,  and  anybody  else  that  is  with 
you? 

Judge  Wells.  Thank  you  very  much. 

I  think  you  met  my  daughters,  Kristin  Brooks  of  Cleveland,  OH, 
and  Caryn  Brooks  of  Berkeley,  CA,  representing  Lauren,  my 
daughter,  and  Stan  Miller,  and  my  grandchildren,  Storm  and 
Tenaya  Miller  of  Mt.  Shasta,  CA,  as  well  as  my  son,  Tom  Brooks 
and  his  wife,  Francesca,  and  my  grandson  Riccardo  of  Lugano, 
Switzerland. 

Also  my  brother  and  sister-in-law,  Fred  and  Adrienne  Brooks  of 
The  Plains,  VA,  and  my  cousins,  Jim  and  George  Anna  Hilton  of 
Salisbury,  MD,  are  here  with  me. 

My  bailiff,  Rob  Pacsi,  and  Tom  and  Peg  Campbell  are  here  from 
Cleveland,  OH,  Madelaine  Fletcher  of  Baltimore,  MD,  Bob  Fenton 
of  Alexandria,  VA,  and  Wendy  Leatherberry  of  Washington,  DC. 

Senator  Metzenbaum.  Let  me  ask  your  daughters  to  stand. 

Judge  Wells.  Again,  Caryn  and  Kristin. 

Senator  Metzenbaum.  We  are  happy  to  welcome  all  of  them  and 
happy  to  welcome  you. 

Judge  Wells.  Thank  you,  sir. 

Senator  Metzenbaum.  Do  you  have  a  brief  opening  statement 
that  you  would  care  to  make? 

Judge  Wells.  No.  Thank  you  very  much. 

Senator  Metzenbaum.  Judge  Wells,  Congress  is  contemplating 
legislation  aimed  at  reducing  the  overcrowding  in  Federal  courts, 
by  allowing  Federal  judges  to  assign  some  of  their  smaller  cases  to 
court-appointed  arbitrators.  Some  people  have  expressed  concerns 
about  this  approach,  saying  that  it  infringes  upon  the  rights  of  citi- 
zens to  a  jury  trial. 

On  your  questionnaire,  you  listed  the  case  of  Essef  Corporation 
V.  Mordecki  Driori  as  one  of  your  most  significant  opinions.  That 
case  involved  the  confirmation  of  an  award  made  by  the  American 
Arbitration  Association  in  a  matter  concerning  a  patent  license  dis- 
agreement. Given  your  experience  both  as  a  judge  and  a  litigator, 
what  are  your  thoughts  on  the  proposal  to  use  court-appointed  ar- 
bitrators? 

Judge  Wells.  Certainly,  as  we  have  seen  many,  many  attempts 
at  trying  to  find  alternatives  for  people  to  resolve  their  disputes, 
arbitration  is  one  of  the  time-honored  ones  and  has  great  value.  I 
particularly  find  when  it  is  contracted  for  by  the  parties  in  ad- 
vance, that  it  is  a  wonderful  assistance  to  having  people  anticipate 
how  their  problems  will  be  resolved  in  a  swift  way. 

On  the  other  hand,  the  right  to  be  able  to  proceed  in  court  is  a 
very  important  right,  and  we  have  been  able — and  I  think  our  dis- 
trict in  the  northern  district  has  set  some  wonderful  standards — 
to  use  early  dispute  resolution,  mediation,  types  of  arbitration,  and 
summary  jury  trials  as  efforts  to  give  people,  once  they  are  at  the 


23 

courthouse  door,  an  option  to  proceed.  But  it  still  preserves  for  peo- 
ple who  feel  that  they  need  their  day  in  court  the  opportunity  to 
go  forward. 

All  I  can  say  is  that  I  am  pleased  to  be  moving  to  a  bench  hope- 
fully that  has  the  full  facilities  to  offer  these  options.  They  are  im- 
portant in  a  time  like  this. 

Senator  Metzenbaum.  But  it  would  always  be  optional  with  the 
litigants? 

Judge  Wells.  But  they  are  optional  with  the  litigants,  and  I 
think  many  people  take  advantage  of  them.  It  is  sort  of  as  if  trial 
has  become  to  a  client,  as  somebody  has  said,  sort  of  like  surgery 
would  be  to  a  patient.  It  can  be  very  important,  but  it  is  not  the 
only  way  to  resolve  disputes,  and  in  America  we  need  to  make 
available  as  many  as  possible. 

Senator  Metzenbaum.  In  recent  years,  much  has  been  said  about 
Federal  courts'  increased  caseload  generally  and  the  resulting  prob- 
lem of  docket  backlogs.  If  confirmed,  what  steps,  if  any,  would  you 
take  to  ensure  that  your  docket  progresses  at  as  quick  a  pace  as 
is  fair  and  reasonable? 

Judge  Wells.  I  am  fortunate  in  some  respects  to  anticipate  being 
able  to  follow  a  judge  who  went  over  several  years  ago  from  the 
bench  I  am  on,  which  is  one  of  the  busiest  in  the  country,  really, 
and  so  we  try  very  hard,  but  with  extraordinarily  limited  resources 
to  do  lots  of  things  that  manage  the  docket. 

The  closest  thing  I  know  to  say,  as  a  trial  judge,  is  you  stay  on 
top  of  it.  Everybody  who  works  with  you  in  your  courtroom  stays 
on  top  of  that  docket,  and  you  in  an  early  point  in  any  case  have 
an  opportunity — I  do  it  personally,  rather  than  through  surrogates 
or  law  clerks — to  sit  down  with  the  lawyers,  so  that  you  can  get 
a  good  feel  for  what  direction  a  case  needs  to  go,  and  that  has 
proved  useful.  I  think  I  will  be  able  to  apply  those  things,  but  cou- 
ple them  with  a  system  which  is  much  more  prepared  to  accept — 
as  our  district  court  system  is,  and  I  think  with  some  of  the  re- 
forms that  have  come  along,  it  is  particularly  so — prepared  to  ac- 
cept the  substantial  increase  in  dockets. 

Senator  Metzenbaum.  Some  Senators,  as  well  as  some  com- 
mentators, have  criticized  judicial  opinions  that  they  label  the  work 
of  judicial  activists.  These  critics  recognize  the  importance  of  stare 
decisis,  judicial  precedent,  and  sometimes  these  two  goals,  to  avoid 
what  some  may  call  legislating  from  the  bench  and  to  follow  settled 
law,  may  conflict.  Do  you  have  any  thoughts  on  the  importance  of 
stare  decisis  and  the  need  to  follow  settled  law? 

Judge  Wells.  We  do  follow  it.  I  have  been  a  judge  11  years.  I 
sit  in  a  State  where  I  am  constrained  to  follow  the  law,  and  I  have 
done  that.  That  is  our  primary  obligation,  is  to  follow  the  law. 

Senator  Metzenbaum.  Do  you  think  at  times  a  judge  has  a  case 
before  him  or  her  and  it  cries  out  for  a  specific  kind  of  a  conclusion, 
and  yet,  based  upon  stare  decisis,  the  decision  would  fall  the  other 
way?  What  does  a  judge  do  then? 

Judge  Wells.  Well,  it  is  one  of  the  great  challenges  of  being  a 
judge,  is  that  you  understand  your  primary  obligation,  and  it  may 
be  that  you  feel  as  the  case  develops  that  there  might  be  some 
other  way  to  go.  But  it  is  a  fairly  common  occurrence  that  one  has 


24 

to  look  seriously  at  being  constrained  by  the  law.  Yes,  we  are  con- 
strained by  the  law. 

That  is  different  I  think  in  your  question  than  the  unprovided 
case,  where  you  get  a  situation  where  there  has  never  been  any- 
thing you  can  lean  on.  I  think  what  you  are  suggesting  is  some- 
thing different.  And  certainly  there  was  a  period  in  this  country 
where  there  was  a  great  expansion  in  what  people  wanted  to  do, 
but  it  is  not  my  judicial  philosophy. 

Senator  Metzenbaum.  Senator  Cohen. 

Senator  Cohen.  Thank  you  very  much. 

Judge  Wells,  I  do  not  profess  to  understand  Louisiana  politics, 
and  even  perhaps  less  Ohio  politics.  But  I  was  curious,  do  you  have 
an  election  system  in 

Judge  Wells.  We  have  a  very  vigorous  election  system,  very  vig- 
orous for  the  judges.  I  sit  in  a  county  where  20  of  us  will  be  up 
for  election  this  term,  and  there  are  legions  of  people  who  run. 
There  is  no  incumbency  rule.  I  have  gone  through  many  elections. 

Senator  Cohen.  We  do  not  have  such  a  system  in  Maine,  except 
for  probate  judges.  When  you  run,  how  do  you  run  a  campaign  for 
the  court?  Do  you  base  it  on  your  record?  You  have  had  an  out- 
standing record.  I  think  7  of  your  opinions  out  of  147  were  ap- 
pealed, a  pretty  outstanding  record,  I  would  think.  What  do  you 
run  on? 

Judge  Wells.  I  think  7  were  reversed  out  of  147  appealed  or 
something.  It  is  a  very  challenging  thing  to  do  and  you  run  it  very 
close  and  tight  and  with  good  advisors.  Actually,  we  formed  com- 
mittees who  do  much  of  it.  But  it  is  a  good  question. 

Senator  Cohen.  Not  the  mechanics  of  running,  but  the  basis 

Judge  Wells.  Well,  we  cannot  say  anything  really  except  judge 
us  on  our  record.  Yet,  let  me  say  this:  I  know  it  is  a  highly  criti- 
cized system,  but  it  is  one  I  have  been  in  for  a  long  time.  It  does 
do  something  that  overcomes  the  isolation  that  judges  commonly 
feel.  When  I  go  into  the  community,  which  I  do  on  many  occasions, 
I  am  a  lightening  rod  for  all  of  their  concerns  about  the  justice  sys- 
tem. 

Of  course,  I  cannot  do  anything  about  those  concerns  except  di- 
rect them  to  the  people  who  can.  But  it  does  mean  that  the  courts 
feel  to  the  people  as  if  they  are  their  courts,  and  I  think  that  is 
something  that  you  could  lose  in  an  isolated  position  where  judges 
were  kept  away  from  people.  But  you  are  correct,  it  is  an  awkward 
campaign.  There  are  many,  many  decisions  one  makes  as  a  judge 
not  to  do  things  that  others  urge  you  to  do,  because  you  are  a 
judge. 

Senator  Cohen.  In  other  words,  you  do  not  go  out  on  the  cam- 
paign stump  and  say  I  am  for  law  and  order  or  I  am  for  greater 
police  protection.  What  do  you  do? 

Judge  Wells.  No,  we  are  governed  by  the  canons.  We  are  gov- 
erned by  the  canons,  and  our  canons  in  our  State  follow  the  model 
of  the  canons  here,  with  the  exception  that  they  recognize  that  we 
are  in  a  State  with  partisan  primary  races  for  judges  who  must  run 
flat-out  open  each  time.  There  is  no  retention.  So  it  is  challenging. 

Senator  CoHEN.  And  somebody  running  against  you,  do  they  hold 
up  your  written  opinions? 


25 

Judge  Wells.  Sometimes  they  just  go  on  television  and  show 
slamming  jail  door  cells  or  something  and  put  their  name  across 
the  screen.  You  know,  it  can  get  very  down  and  dirty.  [Laughter.] 

Senator  COHEN.  You  have  a  State  in  which  you  have  two  Demo- 
cratic Senators,  and  we  had  a  Democratic  President  elected  in 
1992.  I  was  wondering  whether  or  not  you  got  caught  up  in  the  pol- 
itics of  that  somehow.  As  I  understand,  you  ran  for  the  supreme 
court? 

Judge  Wells.  I  ran  in  the  contested  primary  on  the  Democratic 
ticket  for  the  supreme  court,  and  I  was  the  endorsed  Democrat  in 
that  race.  I  lost  it,  but  very  narrowly. 

Senator  Cohen.  Do  you  have  a  judgment  as  to  why?  What  were 
the  issues?  Was  it  something  about  your  record? 

Judge  Wells.  Talk  to  your  colleague  sometimes  and  maybe  he 
has  more  insight  than  I  do.  No,  it  was  not  about  my  record.  But 
I  ran  a  very  constrained  campaign,  as  I  feel  is  proper.  So  no  tele- 
vision maybe  would  be  part  of  your  answer. 

Senator  Cohen.  Senator  Metzenbaum  raised  the  issue  about  ap- 
plying stare  decisis,  and  what  you  would  do  in  the  absence  of  some 
applicable  case  right  on  point.  I  was  trying  to  explore  with  Judge 
Rogers  earlier  the  situation  in  which  we  want  our  judges  to  be  in- 
sulated and  protected  against  public  opinion.  That  is  the  reason 
why  we  are  protected  by  life  tenure. 

But  do  you  draw  a  distinction  between  public  opinion  and  what 
Holmes  might  call  the  "felt  necessities"  of  the  time?  In  other  words, 
in  your  own  mind,  are  you  able  to  distinguish,  or  is  there  a  distinc- 
tion between  what  is  taking  place  currently  as  far  as  public  opin- 
ion, and  what  you  might  determine  to  be  something  so  compelling 
in  the  way  in  which  society  is  drifting,  whether  left  or  right,  that 
you  would  feel  compelled  to  respond  to  that? 

I  am  not  arguing  one  way  or  the  other  whether  you  should  be 
more  to  the  right  or  the  left,  but  obviously  there  is  a  political  swirl 
taking  place  in  our  society,  and  always  has  and  always  will.  What 
is  your  opinion  about  a  situation  in  which  you  do  not  have  a  prece- 
dent and  you  are  free  to  exercise  some  judgment  in  this  particular 
field. 

Do  you  take  into  account  what  the  people  are  thinking?  Is  that 
something  that  should  be  dismissed  out  of  hand,  as  someone  who 
has  run  for  reelection  as  a  judge?  Do  you  listen  to  what  they  are 
saying,  or  do  you  say,  wait  a  minute,  I  cannot  listen  in  this  case, 
I  know  there  is  a  problem  out  there,  I  know  there  is  violence — I 
know  all  of  this,  but  I  am  taking  a  very  academic  approach  and  I 
am  insulated  against  the  felt  necessity  of  the  time? 

Judge  Wells.  Fortunately,  I  am  a  trial  judge,  and  so  I  would  say 
do  I  let  that  influence  me?  No,  I  cannot.  I  am  not  permitted  to  do 
that  under  my  oath.  I  follow  the  law  and  I  follow  it  as  it  comes  to 
me. 

Senator  COHEN.  The  law  is  unclear. 

Judge  Wells.  When  the  law  is  unclear,  then  it  is  a  different  in- 
quiry. I  do  not  take  that  line  of  inquiry.  When  there  is  a  case 
where  the  law  is  cloudy,  then  one  tries  to  clarify  it.  If  there  is  a 
case  where  there  is  no  provision  in  the  law — and  that  happens  oc- 
casionally, which  I  call  the  unprovided  case — then  that  is  a  little 
bit  of  a  different  analysis. 


26 

But  it  comes  down  to  the  same  thing.  We  have  very  narrow  re- 
sponsibiHties.  Find  the  intent,  if  it  is  not  clear  on  its  face.  If  it  is 
clear  on  its  face,  that  is  the  intent,  whether  there  has  been  another 
case  in  the  court  of  appeals  or  not.  If  it  is  not  and  it  is  a  generaliza- 
tion, then  one  tries  very  hard  to  understand  what  the  legislative 
intent  was,  and  I  think  we  have  had  some  discussion  about  ways 
of  doing  that.  But  one  looks  for  parallels,  if  it  is  not  a  question  of 
a  statute. 

Senator  COHEN.  I  am  not  even  talking  about  legislative  intent. 
You  have  a  factual  situation  in  which  you  are  a  trier  of  fact  now. 

Judge  Wells.  All  right. 

Senator  COHEN.  You  are  looking  at  the  actions  of  a  police  officer 
under  a  certain  set  of  circumstances  and  you  listen  to  the  entire 
presentation  of  facts,  that  the  police  officer  is  in  a  very  dangerous 
area  with  lots  of  shootings  of  police  officers  in  recent  times.  Do  you 
take  into  account  their  actions  within  the  context  of  the  world  in 
which  they  have  to  function? 

Judge  Wells.  Senator,  this  is  my  daily  bread.  I  am  a  very  busy 
felony  court.  As  I  understand  the  law  in  my  jurisdiction,  no. 

Senator  Cohen.  You  do  not  take  that  into  account? 

Judge  Wells.  No,  not  what  you  are  describing. 

Senator  COHEN.  You  participated  in  the  Ohio  Supreme  Court  and 
the  Ohio  Bar  Association  Task  Force  on  Gender  Fairness? 

Judge  Wells.  I  did. 

Senator  COHEN.  The  Senate  last  year  passed  the  Violence 
Against  Women  Act,  sponsored  by  Senator  Biden  and  cosponsored 
by  a  number  of  us  on  the  committee,  and  one  of  the  titles  of  the 
bill  is  the  Equal  Justice  for  Women  in  the  Courts.  It  was  in  re- 
sponse to  a  number  of  task  force  reports  that  we  had  on  wide- 
spread gender  bias  in  the  courts,  particularly  in  the  case  of  rape 
and  domestic  violence.  We  would  provide  funds  for  education  and 
training  programs  for  Federal  judges  and  court  personnel. 

I  would  like  the  benefit  of  your  own  experience  in  terms  of  deal- 
ing with  the  courts.  Is  there  gender  bias,  in  your  judgment,  in  rape 
cases  and  domestic  abuse  cases?  If  so,  should  we  spend  the  kind 
of  money  that  we  are  about  to  authorize  for  training  judges  and 
court  personnel  in  dealing  with  it? 

Judge  Wells.  I  have  been  privileged  to  be  part  of  some  of  the 
training  as  a  subject.  I  mean  I  have  gone  to  sessions.  In  Ohio,  we 
train  our  judges  in  gender  bias.  I  think  it  is  helpful. 

Senator  COHEN.  You  would  recommend  that  we  continue  to  fund 
it? 

Judge  Wells.  I  think  people  basically  just  need  to  hang  all  their 
biases  at  the  door  when  they  walk  in  a  court  room,  and  I  think  that 
holds  for  all  the  staff  in  the  justice  system,  from  the  person  who 
types  something  in  an  order  to  the  person  who  is  the  judge. 

Senator  COHEN.  That  is  all  I  have.  Thank  you  very  much.  Judge 
Wells. 

Senator  Metzenbaum.  Thank  you  very  much.  Senator  Cohen. 

Thank  you  very  much,  Judge.  We  will  see  if  we  cannot  move  your 
confirmation  process  along. 

Judge  Wells.  Thank  you. 


27 

Senator  Metzenbaum.  Our  next  nominee  is  Marjorie  Rendell.  Do 
you  solemnly  swear  to  tell  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  so  help  you  God? 

Ms.  Rendell.  I  do. 

TESTIMONY  OF  MARJORIE  RENDELL,  OF  PENNSYLVANIA,  TO 
BE  U.S.  DISTRICT  JUDGE  FOR  THE  EASTERN  DISTRICT  OF 
PENNSYLVANIA 

Senator  Metzenbaum.  Ms.  Rendell,  do  you  have  any  opening 
statement  you  would  care  to  make? 

Ms.  Rendell.  No,  I  do  not,  Mr.  Chairman,  other  than  the  fact 
that  I  am  privileged  and  honored  and  very  pleased  to  be  here. 

Senator  Metzenbaum.  We  are  happy  to  have  you  with  us. 

Do  you  have  members  of  your  family  and  friends  here,  and  would 
you  like  to  introduce  them? 

Ms.  Rendell.  Yes,  Mr.  Chairman,  I  would  like  to.  I  believe  you 
already  met  my  son  Jesse  who  is  here.  My  husband  Ed  is  expected 
any  minute.  He  had  to  go  to  a  conference  that  is  being  held  in 
Washington,  so  he  will  be  here  shortly,  I  am  sure. 

My  cousins,  the  Ramseys,  Lisa,  Jean  and  Jill  are  here,  as  is  a 
law  clerk  in  waiting,  Dan  Gruen,  who  is  a  lawyer  here  in  the  Dis- 
trict who  hopefully  in  several  weeks  would  be  helping  me  on  the 
bench. 

I  would  like  to  note  the  absence  of  my  father  who  is  in  North 
Carolina;  my  sister  who,  but  for  the  weather,  would  have  been  here 
from  North  Carolina;  Beth  Cummings;  and  my  mother  who  passed 
away,  as  a  matter  of  fact,  the  day  that  I  was  nominated  for  this 
position,  but  she  is  here  in  spirit. 

Thank  you,  Mr.  Chairman. 

Senator  Metzenbaum.  Your  son  is  how  old? 

Ms.  Rendell.  He  is  going  to  be  14  in  March. 

Senator  Metzenbaum.  Stand  up,  please,  young  man.  What  is 
your  name? 

Ms.  Rendell.  His  name  is  Jesse. 

Senator  Metzenbaum.  Do  you  think  your  mother  will  be  a  fair 
judge? 

Senator  Cohen.  Wait  a  minute,  is  he  under  oath  here?  [Laugh- 
ter.] 

Senator  Metzenbaum.  Then  I  think  we  will  move  forward  with 
the  confirmation  process. 

Ms.  Rendell.  I  guess  he  will  get  that  Genesis  game  after  all. 
[Laughter.] 

Senator  Metzenbaum.  Your  questionnaire  indicates  you  engage 
in  many  public  service  activities,  such  as  the  Visiting  Nurses  Asso- 
ciation and  the  mentoring  and  counseling  of  college  students.  Given 
your  experience,  do  you  think  that  there  should  be  a  mandatory  re- 
quirement that  lawyers  must  engage  in  pro  bono  activities,  or  do 
you  believe  the  voluntary  system  works  at  present? 

Ms.  Rendell.  Mr.  Chairman,  I  believe  you  cannot  force  people 
to  do  good,  and  I  believe  that  mandatory  requirement  of  pro  bono 
activities  does  not  get  to  the  heart  of  the  matter.  I  believe  that  our 
pro  bono  service  should  be  on  a  voluntary  basis,  but  at  the  same 
time  I  believe  that  the  legal  profession  should  encourage  voluntary 
service  and,  therefore,  I  am  in  favor  of  the  ABA's  recent  resolution 


28 

that  makes  an  aspirational  goal  for  each  lawyer  of  50  hours  per 
year  of  pro  bono  service.  So  I  believe  that  our  profession  has  re- 
sponsibility to  encourage  the  voluntary  pro  bono  service. 

Senator  Metzenbaum.  You  have  been  in  practice  most  of  your 
career,  and  most  of  your  experience  I  note  has  been  in  bankruptcy 
law.  If  confirmed,  you  will  be  faced  with  a  docket  of  criminal,  as 
well  as  civil  matters,  including  constitutional,  employment,  and 
civil  rights  issues.  Given  your  background,  pretty  much  in  bank- 
ruptcy, what  steps  do  you  plan  to  take  to  familiarize  yourself  with 
those  areas  of  law  in  which  you  do  not  have  that  much  experience? 

Ms.  Rendell.  I  am  taking  advantage  even  at  this  time  of  the  re- 
sources of  the  Federal  Judicial  Center  and  am  reading  up  on  dif- 
ferent areas,  especially  the  criminal  area  where  I  really  have  no  ex- 
posure. I  will  be  going  to  judge  school  next  week,  as  well,  and  plan 
to  do  a  lot  of  reading  in  that  area  and  other  areas,  as  well. 

We  also  have  a  wonderful  bench  in  the  Eastern  District  of  Penn- 
sylvania, and  my  hopefully  soon-to-be  colleagues,  many  of  them 
have  offered  assistance  and  I  have  already  started  talking  to  some 
of  them  and  also  to  some  of  my  colleagues.  In  fact,  one  of  my  part- 
ners, Michael  Beilson,  who  was  U.S.  attorney  in  the  eastern  dis- 
trict, to  try  to  get  up  to  speed.  It  will  be  a  challenge,  it  will  be  a 
learning  experience,  but  I  believe  I  am  ready  for  that  challenge  and 
looking  forward  to  it. 

Senator  Metzenbaum.  With  your  experience  in  bankruptcy,  this 
does  not  necessarily  come  under  your  jurisdiction  as  a  Federal 
judge,  but  this  Senator  has  long  had  the  feeling  that  there  was 
kind  of  in-breeding  in  the  bankruptcy  courts  where  the  lawyer  for 
the  trustee  and  the  lawyer  for  the  creditors  and  the  lawyer  for  the 
bankrupt,  they  just  move  around  back  and  forth  and  one  hand 
washes  the  other,  and  nobody  worries  too  much  about  preserving 
the  assets.  Do  you  have  any  thoughts  on  that  subject? 

Ms.  Rendell.  Yes,  Mr.  Chairman.  Prior  to  the  1978  Bankruptcy 
Code,  the  Bankruptcy  Act  which  had  been  in  force  since  1933  really 
left  us  open  as  a  system  to  that  kind  of  criticism,  and  it  was  per- 
haps the  case. 

But  with  the  advent  of  the  1978  code,  different  specific  respon- 
sibilities have  been  given  to  different  parties,  and  I  think  that  we 
are  doing  much  better  and  that  this  tarnished  reputation  should 
not  continue.  However,  at  the  same  time,  we  have  not  had  effective 
tools  within  the  bankruptcy  system  for  case  management,  that  is 
moving  cases  along  on  a  fast  or  at  least  appropriate  track,  so  that 
the  backroom  dealing  or  the  discussions  among  the  various  parties 
are  the  way  that  things  have  moved. 

But  I  will  say  that  with  the  Senate  bill  now  pending,  we  hope- 
fully will  be  given  case  management  tools  such  as  the  presumption 
of  the  filing  of  a  plan  within  1  year  for  every  case,  such  as  a  new 
fast-track  chapter  10  proceeding,  whereby  small  cases  move  for- 
ward. I  think  the  diligent  time  advancing  of  cases  and  the  judge's 
monitoring  of  those  cases  will  help  do  away  with  a  lot  of  the,  as 
I  say,  tarnished  reputation  or  cronyism  that  I  think  has  been  asso- 
ciated with  the  bankruptcy  system  in  the  past. 

Senator  Metzenbaum.  Thank  you. 

Senator  Cohen? 


29 

Senator  Cohen.  Just  a  couple  of  quick  questions  on  bankruptcy. 
Are  there  too  many  priorities  set  forth  in  the  law  as  far  as  pref- 
erences under  the  Bankruptcy  Act,  so  that  by  the  time  you  get 
through  all  the  priority  creditors,  there  is  nothing  left  over  for  any 
of  the  unsecured  creditors? 

Ms.  Rendell.  That  is  an  interesting  question,  and  I  am  wonder- 
ing if  legislation  has  been  thought  of  to  do  away  with  some  of 
them.  I  cannot  think  of  any  of  the  priority  claims  that  really  should 
not  be  there.  I  understand  that  some  might  have  reluctance  be- 
cause of  the  trickle-down  theory,  and  if  there  is  nothing  there,  it 
is  not  right  for  creditors. 

Yet  we  have  very  good  priorities.  We  have  priorities  for  taxes,  we 
have  priorities  for  ERISA  claims,  we  have  priorities  for  costs  and 
expenses  of  administration,  which  must  be  borne  or  there  definitely 
will  be  nothing  there  for  trade  creditors. 

So  while  you  might  criticize  that,  because  that  is  what  has  hap- 
pened, I  believe  the  legislature  would  be  hard-pressed  to  whittle 
away  on  any  of  those  or  limit  them,  because  I  believe  that  maybe 
could  do  more  disservice  to  trade  creditors  in  the  end. 

Senator  Cohen.  What  about  the  effectiveness  of  chapter  11,  has 
it  served  a  valid  social  goal? 

Ms.  Rendell.  There  has  been  a  lot  of  commentary  in  the  last  18 
months  about  chapter  11  and  that  it  has  not  served  a  goal.  Again, 
I  would  say  exactly  as  I  said  to  the  chairman,  that  the  goal  of  chap- 
ter 11  should  be  to  come  out  of  chapter  11.  It  should  not  be  to  lin- 
ger. And  to  the  extent  that  a  judge  in  a  given  case  or  the  attorneys 
in  a  given  case  let  it  linger,  then  they  are  doing  a  disservice  to 
chapter  11. 

So  I  believe  that  with  the  passage  of  S.  540,  that  we  will  have 
tools  that  will  move  it  along,  and  I  think  will  make  a  lot  of  the 
commentators  think  twice  about  just  abandoning  this  as  a  system. 
I  do  not  think  there  is  anything  wrong  with  the  system  that  we 
working  diligently  and  working  through  effective  case  management 
cannot  overcome. 

Senator  Cohen.  That  is  all  I  have,  Mr.  Chairman. 

Senator  Metzenbaum.  Thank  you  very  much,  Senator  Cohen. 

Senator  Specter. 

Senator  Specter.  How  do  you  hke  being  a  witness? 

Ms.  Rendell.  Actually,  being  a  witness  is  a  lot  better  than  an- 
ticipating being  a  witness.  Senator.  [Laughter.] 

Senator  Specter.  Your  answers  are  very  good,  Ms.  Rendell,  and 
I  do  not  have  any  questions  for  you,  because,  as  I  said  earlier,  I 
have  known  you  a  long  while  and  have  total  confidence  in  your 
ability  to  handle  the  job. 

I  would  make  one  comment  that  I  heard  Senator  Thurmond 
make  in  1982,  at  one  of  the  first  Judiciary  Committee  hearings  I 
attended,  where  there  were  two  judicial  nominees  from  Pennsylva- 
nia testifying.  Senator  Thurmond  asked  the  question:  Do  you  prom- 
ise to  be  courteous,  if  you  are  confirmed?  And  I  thought  to  myself, 
what  kind  of  a  question  is  that?  Who  would  not  answer  that  in  the 
affirmative? 

Of  course,  both  nominees  answered  it  in  the  affirmative,  and 
then  Senator  Thurmond  said,  the  more  power  a  person  has,  the 
more  courteous  that  person  should  be. 


30 

Senator  Cohen.  Speak  into  that  machine  there,  will  you? 
[Laughter.] 

Senator  Specter.  You  mean  pull  it  closer? 

Senator  COHEN.  Senator  Thurmond  always  admonishes  us  to 
speak  into  the  machine. 

Senator  Specter.  Among  other  things.  [Laughter.] 

I  am  in  my  14th  year  now  here  and  I  have  not  heard  anything 
wiser  than  that  said  in  the  time  I  have  been  here.  I  believe  there 
is  a  problem  with  judges,  maybe  even  with  Senators,  perhaps  less 
so  with  Senators  who  have  to  run  for  election.  Although  there  is 
some  consideration  to  limit  Federal  judicial  positions  to  6-year 
terms  and  give  Senators  life  tenure.  [Laughter.] 

But  there  is  a  real  problem  with  judges  having  life  tenure  not  to 
remember  what  it  was  like  not  being  a  judge,  and  I  think  that  is 
something  that  has  to  be  remembered.  There  have  been  a  great 
many  judges  appointed,  about  30  in  Pennsylvania  since  I  have  been 
in  the  Senate,  and  I  have  to  say  that  I  get  some  complaints  about 
some  of  those.  So  I  always  want  to  make  Senator  Thurmond's 
point. 

Ms.  Rendell.  I  could  not  agree  more  with  that.  I  think  self-re- 
spect for  the  individual,  understanding  the  traumas  that  the  law- 
yers, the  litigants,  and  the  jury  is  going  through  and  empathizing 
with  them,  and  not  engaging  in  belittling,  that  to  me  is  so  fun- 
damental to  our  system.  And  I  think  that  the  concept  of  life  tenure 
should  instead  be  that  you  have  security  in  order  to  accomplish 
something  while  you  are  there,  not  security  that  would  make  you 
feel  self-important.  So  I  feel  that  those  words  are  well  spoken,  and 
I  hope  and  believe  I  can  carry  them  out. 

Senator  Specter.  I  appreciate  that  response,  and  I  think  that  is 
the  essence  of  life  tenure:  to  give  independence  so  you  can  carry  on 
your  role  as  a  judge.  I  look  forward  to  seeing  you  do  just  that. 

Ms.  Rendell.  Thank  you  so  much.  Senator. 

Senator  Specter.  Thank  you,  Mr.  Chairman. 

Senator  Metzenbaum.  Thank  you  very  much. 

Ms.  Rendell.  Thank  you,  Mr.  Chairman.  Senator  Cohen,  thank 
you. 

Senator  Metzenbaum.  Mr.  Thomas  Vanaskie:  Mr.  Vanaskie,  do 
you  swear  to  tell  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  so  help  you  Grod? 

Mr.  Vanaskie.  I  do. 

TESTIMONY  OF  THOMAS  VANASKIE,  OF  PENNSYLVANIA,  TO  BE 
U.S.  DISTRICT  JUDGE  FOR  THE  WESTERN  DISTRICT  OF 
PENNSYLVANIA 

Senator  Metzenbaum.  Would  you  like  to  introduce  your  family, 
Mr.  Vanaskie? 

Mr.  Vanaskie.  Yes,  I  would,  Mr.  Chairman.  Thank  you  very 
much. 

I  only  brought  a  pad  with  me,  because  I  did  not  want  to  forget 
anybody.  I  have  with  me  and  have  already  been  introduced  to  you 
the  rock  of  my  life,  my  wife  Dottie,  and  my  children,  Diane  who 
is  14,  Mark  who  is  12,  and  my  son  Tommy  who  is  a  little  over-awed 
by  the  whole  process.  He  is  10  years  old. 


31 

I  am  proud  to  be  here,  sir,  to  introduce  my  parents:  My  father, 
who  is  a  Pearl  Harbor  survivor,  and  my  mother,  John  Vanaskie 
and  Dolors  Vanaskie.  And  I  have  here  my  mother-in-law  and  fa- 
ther-in-law. Bob  and  Edith  Williams;  my  brother-in-law  and  sister- 
in-law,  Bobby  and  Marsha  Williams  are  here  with  their  nephew 
Scott,  who  is  a  senior  in  high  school.  My  very,  very  dear  friends 
from  home,  the  Helbachs,  Karen  and  Mike  and  their  children  Jill 
and  Mike,  Jr.,  are  here,  as  well. 

My  colleague  in  practice  in  Scranton,  Tommy  Brown  is  here,  and 
my  colleague  in  practice  in  Washington,  Joe  Artebean  had  been 
here.  And  also  I  am  really  pleased  that  two  very  distinguished  at- 
torneys from  the  District  of  Columbia  who  I  have  practiced  with  on 
some  difficult  matters  have  stopped  over,  Dave  Eisenstadt  and  Dan 
Joseph. 

Senator  Metzenbaum.  Do  any  of  you  think  that  Mr.  Vanaskie 
will  not  be  a  fair  judge,  if  confirmed?  If  you  do,  you  had  better 
leave  the  room  promptly.  [Laughter.] 

Mr.  Vanaskie,  would  you  care  to  make  an  opening  statement? 

Mr.  Vanaskie.  I  do  not  have  any  opening  statement,  Mr.  Chair- 
man, other  than  to  express  my  gratitude  to  the  President  for  the 
confidence  he  has  expressed  in  me  in  nominating  me  for  this  posi- 
tion of  tremendous  responsibility,  to  express  my  thanks  to  Senator 
Specter  and  Senator  Wofford  for  their  kind  words  of  support  they 
offered  today,  and  to  commend  the  committee  and  its  staff  for 
bringing  this  nomination  to  a  hearing  so  promptly  after  the  recess. 

Senator  Metzenbaum.  Mr.  Vanaskie,  I  heard  Senator  Wofford 
spell  out  some  of  your  background,  and  some  of  it  passed  over  me. 
Would  you  just  give  me  a  little  bit  of  a  resume  on  that? 

Mr.  Vanaskie.  Mr.  Chairman,  I  grew  up  and  I  have  four  brothers 
and  two  sisters.  It  was  a  large  family  in  a  very,  very  small  house, 
half-double,  in  a  little  coal  mining  town  called  Schmoken.  My  dad 
is  a  bricklayer  and,  as  a  bricklayer,  especially  in  that  area,  it  was 
seasonal  employment  and  it  was  tough  going.  My  mother  worked 
in  a  shirt  factory. 

And  at  an  early  age,  we  had  to  work  and  I  have  worked  since 
I  can  remember.  I  have  worked,  of  course,  as  a  paper  boy  and  then 
in  the  circulation  department  of  a  newspaper,  I  have  flipped  ham- 
burgers, I  have  washed  dishes,  I  have  worked  in  a  hat  factory,  I 
have  worked  in  a  shirt  factory,  in  a  warehouse,  I  worked  as  a  con- 
struction laborer.  I  think  the  hardest  job  I  ever  had  was  planting 
trees  in  strip-mine  reclamation  projects.  It  does  not  sound  like  hard 
work,  but  digging  in  rock  and  planting  trees  in  rock  is  very  hard 
work. 

I  have  also  had  great  experiences  both  in  law  school  and  being 
able  to  clerk  as  a  first-year  law  school  student  for  Judge  Genevieve 
Blatt,  who  was  on  the  commonwealth  court,  a  very  distinguished 
member  of  our  commonwealth  court,  which  is  an  intermediate  ap- 
pellate in  our  State.  And  I  have  worked  in  a  State  agency  and  I 
have  worked  for  a  Republican  State  Senator  in  Pennsylvania,  as 
well,  while  I  was  in  law  school. 

Senator  Metzenbaum.  A  very  interesting  background,  and  it  cer- 
tainly gives  you  a  broad  base  from  which  to  become  a  jurist. 

Your  questionnaire  states  that  since  1985,  100  percent  of  your 
practice  has  been  civil  litigation.  If  confirmed  for  a  position  on  the 


32 

Federal  bench,  you  will  preside  over  cases  which  may  include  drug 
trafficking,  major  Federal  and  civil  rights  violations,  and  constitu- 
tional issues.  That  is  a  little  bit  different  from  civil  litigation,  and 
my  question  is  do  you  have  any  steps  that  you  plan  to  take  in  order 
to  familiarize  yourself  with  those  areas  of  the  law  on  which  you 
may  lack  experience? 

Mr.  Vanaskie.  Yes,  Mr.  Chairman,  I  do  have  plans,  and  in  hope- 
ful anticipation  that  I  am  confirmed,  I  have  already  begun  the  ef- 
fort to  bring  myself  up  to  speed  in  those  areas.  For  example,  I  have 
already  attended  a  seminar  put  on  by  the  U.S.  Sentencing  Commis- 
sion with  respect  to  the  guidelines.  I  have  obtained  from  the  Fed- 
eral Judicial  Center  educational  materials  that  are  very,  very  use- 
ful, including  video  training  materials.  As  the  other  nominees  who 
are  here  today,  I  am  enrolled  next  week  to  go  to  video  orientation 
for  district  court  judges. 

I  have  a  very  good  rapport  with  the  members  of  the  Middle  Dis- 
trict of  Pennsylvania  now,  and  I  intend  to  enlist  their  advice  and 
help  in  coming  up  to  speed  in  this  area.  I  should  mention  that,  in 
terms  of  civil  rights,  I  have  had  experience  in  that  area  as  a  litiga- 
tor and  have  represented  an  indigent  State  court  prisoner  in  bring- 
ing an  appeal  to  the  U.S.  Court  of  Appeals  for  the  Third  Circuit 
that  raised  constitutional  rights. 

Senator  Metzenbaum.  In  1992,  you  were  appointed  to  the  Law- 
yers Advisory  Committee  for  the  U.S.  District  Court  for  the  Middle 
District  of  Pennsylvania.  Please  explain  what  issues  that  commit- 
tee addressed,  and  whether  your  experience  has  provided  you  with 
any  insights  concerning  the  challenges  that  a  U.S.  district  judge 
may  face. 

Mr.  Vanaskie.  The  advisory  committee  for  the  middle  district 
has  been  in  place  for  a  great  number  of  years.  It  predates,  of 
course,  the  Civil  Justice  Reform  Act,  but  its  intent  was  to  serve  as 
a  liaison  between  the  practicing  members  of  the  bar  and  the  court 
itself,  and  we  hold  quarterly  meetings  with  the  chief  judge  of  our 
district,  and  the  purpose  of  those  meetings  is  to  bring  to  the  court's 
attention  concerns  that  practitioners  are  having  in  terms  of  case 
management  or  case  progress. 

We  have  also  addressed  matters  such  as  greater  utilization  of 
magistrate  judges  in  order  to  move  the  matters  along,  and  we  have 
implemented,  in  cooperation  with  the  chief  judge  and  the  members 
of  the  middle  district  court  a  law  school  practice  role.  And  I  think 
that  is  a  very  effective  means  of  readying  those  who  are  students 
for  the  practice  of  law. 

Senator  Metzenbaum.  What  was  your  major  area  of  accomplish- 
ment in  the  athletic  world?  I  see  you  have  got  a  number  of  awards 
in  sports. 

Mr.  Vanaskie.  Maybe  the  thing  I  am  most  proud  of  now — the 
older  you  get,  of  course,  the  more  important  they  seem  to  become, 
but  I  was  inducted  into  the  Schmoken,  PA,  Chapter  of  the  Penn- 
sylvania Hall  of  Fame,  and  that  was  a  very  gratifying  recognition, 
I  suppose.  But  maybe  in  terms  of  how  I  feel  about  the  other  rec- 
ognitions, it  would  have  been  recognized  as  the  first  academic  ail- 
American  in  football. 

Senator  Metzenbaum.  In  football? 

Mr.  Vanaskie.  In  football,  sir. 


33 

Senator  Metzenbaum.  Very  good. 

Senator  Cohen. 

Senator  Cohen.  I  would  just  challenge  one  statement  you  made. 
I  would  say  the  older  one  gets,  the  award  that  one  achieved  seems 
to  loom  larger  in  the  memory.  As  someone  who  was  engaged  in  a 
lot  of  college  activities,  they  seem  much  more  magnanimous  now  in 
retrospect  than  they  were  at  the  time. 

Mr.  Vanaskie.  I  agree  with  you. 

Senator  Cohen.  I  read  your  article  in  1977  about  the  Supreme 
Court  decision  in  the  National  League  of  Cities  v.  Usery. 

Mr.  Vanaskie.  Yes. 

Senator  Cohen.  I  was  curious  about  the  language  that  you  used, 
because  you  discussed  the  precedents  that  the  court  both  used  and 
discarded  and  you  wrote  that  in  National  League  of  Cities  the 
Court  has  "fabricated  a  new  method  for  reviewing  commerce  power, 
regulations  and  State  functions,  namely  the  State  sovereignty  doc- 
trine." 

I  was  curious  about  your  use  of  the  words  "they  have  fabricated." 
As  an  attorney,  I  am  sure  Senator  Specter  and  Senator  Metzen- 
baum would  say  that  attorneys  or  Leagues  of  Cities  or  any  other 
plaintiff  does  not  necessarily  fabricate,  but  does  advocate  a  particu- 
lar position.  They  were  successful  in  1976  when  the  case  was  de- 
cided, and  then  a  short  time  thereafter  the  court  reversed,  as  I  re- 
call, and  basically  came,  I  assume,  to  your  own  position  on  this. 

It  raised  a  question  in  my  mind.  Do  you  think  the  court  was  cor- 
rect in  overruling  the  1976  decision,  or  should  the  court  have  ap- 
plied stare  decisis  in  that  matter? 

Mr.  Vanaskie.  I  do  not  know  if  I  have  a  position,  but  the  premise 
of  the  paper,  the  premise  of  the  article  was  that  rationales  were  de- 
veloped in  order  to  justify  a  certain  outcome. 

Senator  Cohen.  I  think  you  used  the  word  "fabricated." 

Mr.  Vanaskie.  I  used  the  word  "fabricate,"  yes,  absolutely.  And 
in  terms  of  do  I  agree  that  there  are  instances  where  there  should 
be — your  specific  question,  Senator  Cohen,  is  did  I  agree  with  the 
result  in  the  Garcia  case,  Garcia  v.  San  Antonio  School  District,  I 
believe. 

In  terms  of  an  outcome,  it  seemed  to  me  that  when  we  looked 
at  decisions  that  involved  exercise  of  the  commerce  clause  power 
insofar  as  it  affected  State  governmental  matters,  matters  of  State 
interests,  the  court  in  Maryland  v.  Wirtz  had  spoken  pretty  clearly 
on  that  point,  but  again  a  divided  court,  and  it  seemed  to  me  that 
we  were  obtaining  results  based  upon  a  judiciary's  view  or  the 
court's  view  of  the  proper  structure  of  federalism,  what  it  ought  to 
be. 

I  thought  the  instance  of  using  the  State  sovereignty  doctrine  in 
the  National  League  of  Cities  case  was  an  instance  of  judicial  activ- 
ism, where  the  legislative  policy  was  disregarded.  It  seems  to  me, 
and  I  believe  it  would  be  correct,  that  the  premise  of  the  article  is 
that  questions  of  the  proper  structure  and  allocation  of  power  in 
the  Federal  system  is  left  to  the  political  bodies  and  not  to  the  judi- 
ciary. 

Senator  Cohen.  So  if  you  have  a  case  in  which  you  believe  the 
prior  court  decision  was  the  result  of  judicial  activism,  does  that 
mean  that  you  would  support  a  reversal  of  that  decision.  In  other 


34 

words  suppose  when  you  have  a  different  court  come  in  by  virtue 
of  the  replacement  of  members,  and  they  look  back  and  say  we  had 
a  very  activist  court  during  the  1970's  and  the  1980's.  Would  it  be 
proper  for  the  court  to  say  it  is  taking  a  different  tact  now,  that 
a  prior  decison  was  the  result  of  judicial  activism  and  that  it  is 
being  overruled? 

The  question  I  really  have  is,  do  you  think  that  a  court  should 
apply  stare  decisis?  Is  there  a  timeframe  that  you  look  at? 

Mr.  Vanaskie.  There  is  no  timeframe,  and  I  would  mention  that 
the  Maryland  v.  Wirtz  case  was  decided  in  1968,  so  8  years  later 
you  had  that  overruled,  as  well. 

But  my  responsibility  as  a  district  court  judge,  if  confirmed,  is  to 
follow  the  law  as  it  is  established,  and  I  have  no  function  in  terms 
of  deciding  whether  or  not  that  was  an  exercise  of  judicial  activism 
or  not.  It  is  simply  to  apply  the  precedent  as  it  has  been  estab- 
lished by  the  Supreme  Court,  of,  if  there  is  none,  by  the  third  cir- 
cuit. 

Senator  COHEN.  In  other  words,  if  you  were  presented  with  a 
similar  case,  even  though  you  felt  the  League  of  Cities,  if  it  were 
in  effect  at  the  time,  was  the  product  of  either  fabrication  or  nov- 
elty advocacy,  would  you  uphold  until  it  was  overruled? 

Mr.  Vanaskie.  Yes,  Senator. 

Senator  COHEN.  I  think  that  is  all  I  have,  Mr.  Chairman. 

Senator  Metzenbaum.  Thank  you  very  much,  Senator  Cohen. 
Senator  Specter. 

Senator  Specter.  Thank  you  very  much,  Mr.  Chairman.  I  have 
no  questions.  You  were  in  the  room  and  heard  what  I  had  to  say 
to  Ms.  Rendell  about  Senator  Thurmond's  admonition.  Good  luck. 

Mr.  Vanaskie.  Thank  you,  and  I  agree  wholeheartedly  with  what 
you  said.  Senator  Specter. 

Senator  Specter.  Thank  you. 

Senator  Metzenbaum.  Thank  you  very  much,  Mr.  Vanaskie,  and 
good  luck  to  you. 

Mr.  Vanaskie.  Thank  you. 

Senator  Metzenbaum.  Our  next  witness  is  Helen  Georgena 
Berrigan,  New  Orleans,  LA. 

Do  you  swear  to  tell  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  so  help  you  God? 

Ms.  Berrigan.  I  do. 

TESTIMONY  OF  HELEN  GEORGENA  BERRIGAN,  OF  LOUISIANA, 
TO  BE  U.S.  DISTRICT  JUDGE  FOR  THE  EASTERN  DISTRICT 
OF  LOUISIANA 

Ms.  Berrigan.  If  I  could,  I  would  like  just  to  say  as  a  preface 
that  this  has  been  a  very  extraordinary  week  for  me.  This  past 
Monday,  my  entire  family,  my  brothers  and  sisters  and  nieces  and 
nephews  got  together  for  the  first  time  in  over  a  decade  to  cele- 
brate my  father's  100th  birthday. 

Senator  Metzenbaum.  Fantastic. 

Ms.  Berrigan.  And  it  was  that  afternoon  of  his  birthday  that  the 
call  came  from  the  Justice  Department  to  head  on  down  here.  My 
dad  unfortunately,  because  of  his  age,  could  not  make  the  trip.  He 
very  much  wanted  to  be  here.  He  is  the  reason  we  have  the  film 
crew,  so  I  just  wanted  to  say  hi. 


35 

I  do  have  a  number  of  very  important  people  here  with  me  today. 
First,  my  husband  and  best  friend  Joe. 

Senator  Metzenbaum.  We  are  glad  to  have  you  with  us. 

Ms.  Berrigan.  And  my  sister  Kathy  from  Louisiana,  who  is  my 
second  best  friend.  Until  I  met  Joe,  she  was  my  first  best  friend. 

My  law  partner  Jim  Brady,  who  has  helped  guide  me  through 
this  whole  unusual  process.  Also,  my  mom  died  many  years  ago, 
and  there  is  a  woman  here  who  kind  of  was  a  surrogate  mom  for 
me  during  some  important  times  of  my  life,  and  that  is  Maureen 
Finnigan,  and  I  would  like  her  to  stand. 

And  then  a  very  good  buddie  of  mine  from  my  hometown  who 
went  to  the  University  of  Wisconsin  with  me  and  was  my  room- 
mate here  in  Washington  when  I  had  the  distinction  of  working  for 
Senator  Hughs  and  Senator  Biden,  Stu  Jackson  Pardo. 

Senator  Cohen.  You  worked  for  Senator  Biden,  too? 

Ms.  Berrigan.  Yes,  sir. 

Senator  Cohen.  We  may  have  to  take  a  reconsideration  of  your 
nomination.  [Laughter.] 

Ms.  Berrigan.  My  dad  did  want  me  to  tell  Senator  Cohen  that, 
for  all  his  100  years,  he  has  been  a  Republican.  [Laughter.] 

Senator  Metzenbaum.  You  obviously  did  not  come  from  Louisi- 
ana originally? 

Ms.  Berrigan.  No,  sir,  I  am  originally  from  Larchmont,  NY. 

Senator  Specter.  You  all  sound  like  it. 

Senator  Metzenbaum.  Do  you  have  an  opening  statement? 

Ms.  Berrigan.  One  other  comment  I  forgot  to  make  is  that  my 
mom  and  all  her  family  were  from  Tip  City,  OH,  and  we  spent 
many  a  summer 

Senator  Metzenbaum.  Whereabouts  in  Ohio? 

Ms.  Berrigan.  Tip  City,  outside  Dayton. 

Senator  Metzenbaum.  Well,  we  are  very  happy  to  have  you  here. 

In  1987,  you  wrote  an  article  suggesting  as  an  alternative  to  in- 
carceration that  an  inmate  be  sentenced  to  a  boot  camp.  After  suc- 
cessfully completing  boot  camp,  the  offender  would  be  eligible  for 
parole  release  or  he  would  be  intensely  supervised  and  subject  to 
a  curfew  house  arrest. 

As  you  know,  the  Senate  recently  passed  a  crime  bill  which  in- 
cludes a  provision  of  established  Federal  boot  camps  for  nonviolent 
offenders.  If  that  bill  becomes  law  and  you  are  confirmed,  how 
would  you  determine  which  nonviolent  offenders  to  send  to  boot 
camp? 

Ms.  Berrigan.  We  have  a  similar  type  statute  in  Louisiana,  and 
the  statute  sets  forth  the  offender  classes  that  would  be  eligible.  I 
think  you  have  to  be  sentenced  to  a  sentence  of  7  years  or  less,  it 
is  certain  particular  offenses,  the  judge  has  to  make  the  rec- 
ommendation, there  has  to  be  no  history  of  violence.  There  is  a 
number  of  qualifications  that  have  been  put  into  the  statute. 

I  would  hope  that  if  such  a  similar  procedure  was  enacted  by 
Congress,  it  would  also  set  forth  the  guidance  in  the  statute  as  to 
what  offenders  would  be  eligible  for  consideration. 

Senator  Metzenbaum.  As  a  district  court  judge,  would  you  con- 
sider yourself  bound  by  Supreme  Court  and  circuit  court  decisions, 
even  though  you  might  personally  feel  quite  strongly  that  some  of 


36 

those  decisions  were  incorrect  or  failed  to  interpret  the  Constitu- 
tion as  you  thought  it  should  be  interpreted? 

Ms.  Berrigan.  I  think  one  of  the  most  important  aspects  of  the 
law  is  stability  and  respect  for  stare  decisis  and  prior  jurispru- 
dence, and  I  would  consider  myself  totally  bound  by  both  fifth  cir- 
cuit and  U.S.  case  law. 

Senator  Metzenbaum.  As  a  practicing  lawyer — and  you  are  a 
practicing  lawyer  I  understand  now — what  type  of  work  did  you  do? 

Ms.  Berrigan.  Primarily  criminal  defense  and  postconviction 
pardon  and  parole,  but  criminal  related  law. 

Senator  Metzenbaum.  I  do  not  have  your  record  in  front  of  me, 
but  have  you  been  in  any  extracurricular  activities?  What  kinds  of 
any  have  you  been  involved  in? 

Ms.  Berrigan.  Well,  I  am  not  sure  what  you  mean  by  extra- 
curricular. I  have  been  active  in  the  Louisiana  American  Civil  Lib- 
erties Union  for  a  number  of  years.  I  have  been  active  in  political 
organizations,  for  example,  an  organization  to  encourage  women  to 
run  and  serve  in  public  office.  I  have  done  fund-raising  activities 
on  behalf  of  a  hospice  for  AIDS  victims  and  patients  in  New  Orle- 
ans. I  have  done  things  in  the  community  that  I  hope  improve  the 
community. 

Senator  Metzenbaum.  It  sounds  pretty  good  to  me. 

Ms.  Berrigan.  Thank  you. 

Senator  Metzenbaum.  The  Judicial  Conference,  which  is  the  pol- 
icy-making arm  of  the  Federal  courts,  is  in  the  midst  of  a  3-year 
experiment  allowing  the  use  of  cameras  in  Federal  courts  during 
civil  trials.  A  restriction  on  that  experiment  is  that  the  media, 
when  it  is  interested  in  televising  a  particular  trial,  must  notify  the 
presiding  judge  in  advance  and  the  judge  may  refuse  the  request 
at  his  or  her  discretion. 

What  factors  would  you  use  in  making  your  decision  as  to  wheth- 
er to  agree  to  a  request  to  televise  a  certain  trial? 

Ms.  Berrigan.  I  think  the  primary  consideration  is  giving  the 
litigants  a  fair  trial.  I  guess  at  the  one  side  I  would  be  concerned 
as  to  how  the  televised  aspect  of  it  might  affect  the  witnesses, 
whether  the  witnesses  would  be  intimidated  or  somehow  affected 
in  their  testimony  by  being  on  television,  how  the  jury  might  be  af- 
fected, if  it  was  a  highly  emotional  case,  would  the  jury  be  con- 
cerned about  being  on  television  and  what  folks  outside  might 
think.  Those  are  the  things  I  would  probably  take  into  consider- 
ation. 

Senator  Metzenbaum.  Senator  Cohen. 

Senator  COHEN.  Thank  you  very  much. 

Ms.  Berrigan,  you  wrote  an  article  called  "The  Purpose  of  Pun- 
ishment"  

Ms.  Berrigan.  Yes. 

Senator  COHEN  [continuing].  In  which  you  list  the  four  tradi- 
tional philosophies  of  correction  being  rehabilitation,  deterrence,  in- 
capacitation and  retribution.  I  think  you  indicated  that  retribution 
is  at  best  shortsighted,  and  at  worse  dangerously  destructive  to  in- 
dividuals who  are  otherwise  salvageable. 

The  question  I  have  is  what  role,  if  any,  does  retribution  have 
in  the  criminal  justice  system,  as  far  as  you  are  concerned? 


37 

Ms.  Berrigan.  Well,  I  think  there  is  a  natural  need  for  society 
to  say  to  someone  in  a  forum  or  either  through  our  criminal  justice 
system  that  you  cannot  do  certain  things  to  your  fellow  citizens.  If 
retribution  is  that,  if  it  is  the  just  deserts  concept  that  you  have 
done  wrong  and,  therefore,  you  must  pay  the  consequences  of  what 
you  have  done,  that  is  salutary  and  important,  because  people  do 
have  to  be  held  responsible  for  what  they  do. 

I  think  rehabilitation  also  is  an  important  consideration,  and  you 
did  read  the  complete  sentence  where  I  indicated  that  when  people 
can  be  salvageable,  and  I  think  rehabilitation,  for  example,  should 
always  be  at  least  an  opportunity.  Only  a  person  themselves  can 
decide  they  want  to  rehabilitate  themselves.  The  system  cannot  do 
it  to  them,  but  certainly  the  opportunity  should  be  there. 

So  I  think  all  four  of  those  ingredients  are  a  part  of  our  correc- 
tions system  and  probably  will  remain  so  and  appropriately  so. 

Senator  COHEN.  One  of  the  problems  I  think  you  indicated  before 
is  that  we  need  to  maintain  respect  for  the  courts  and  our  judicial 
system,  but  that  respect  is  breaking  down.  Now,  it  may  be  that  the 
loss  of  respect  is  endemic.  It  is  affecting  all  of  our  institutions.  But 
more  and  more  I  think  the  focus  has  been  directed  toward  the 
courts,  as  well,  because  of  the  celebrated  cases.  For  example,  the 
Monica  Seles  case  in  Germany,  in  which  she  was  attacked  with  a 
pair  of  scissors  or  a  knife,  as  I  recall,  and  stabbed,  and  yet  the 
court  released  that  individual  and  put  him  on  probation.  There  was 
a  natural  outcry,  saying  a  tremendous  injustice  has  been  done. 

You  can  go  through  case  after  case  in  which  there  is  a  horrible 
example  of  a  vicious  crime  being  committed  against  an  individual, 
and  society  says  something  must  be  done  to  acquire  retribution  in 
that  case.  The  most  recent  one  I  can  think  of  is  just  this  week 
there  was  a  case  in  which  a  man  was  sitting  in  his  car  and  an  indi- 
vidual came  up  and  had  a  gun  and  demanded  the  man  get  out  of 
the  car.  He  locked  his  doors  and  ducked  down  on  the  seat  and  was 
lying  prone  on  the  seat,  and  the  individual  who  was  trying  to  get 
in  started  firing  the  gun  into  the  car  and  succeeded  in  paralyzing 
that  individual  for  life. 

The  reaction  of  the  victim's  family  was  "I  want  the  perpetrator 
of  the  crime  to  live  exactly  as  my  father  has  to  live  the  rest  of  his 
life."  Now,  retribution  in  this  case  does  serve  a  very  valid  purpose 
in  our  system.  It  is  not  to  say  that  any  court  or  society  is  going 
to  impose  an  equal  level  of  retribution.  We  are  not  going  to  see  that 
that  individual  is  paralyzed,  but  the  emotion  that  is  involved  collec- 
tively in  society,  particularly  for  that  family,  is  so  strong  that  the 
sentence  that  individual  receives,  if  in  fact  he  is  ever  convicted, 
seems  to  me  should  be  very  severe. 

To  often,  we  tend  to  take  into  account  the  salvageability  or  the 
rehabilitation  of  the  individual  and  we  tend  to  ignore  the  severity 
of  the  pain  that  individual  has  inflicted.  To  the  extent  we  continue 
to  do  that,  society  is  going  to  see  the  rise  of  vigilante  groups,  people 
taking  the  law  into  their  own  hands,  people  equipping  themselves 
with  their  own  weapons,  riding  around  with  guns  in  their  cars  to 
prevent  car  jackings.  There  is  a  common  sense  that  we  have  been 
too  easy  in  terms  of  the  penalties  that  have  been  imposed.  People 
go  in  prison  and  they  are  back  out  on  the  street. 


38 

You  cannot  turn  on  a  program  on  television  at  nighttime  now, 
"Courts  and  the  Law,"  or  "Cops  Out  on  the  Beat,"  without  hearing 
every  individual  in  the  law  enforcement  business  rail  against  the 
criminad  justice  system  complains  about  spending  more  time  filling 
out  paperwork  than  the  criminal  will  to  serve  in  prison.  And  you 
see  people  going  to  the  system  and  coming  out. 

As  a  matter  of  fact,  that  is  one  of  the  reasons  I  think,  the  Presi- 
dent endorsed  the  Senate's  crime  bill  that  contained  the  so-called 
three-strikes-and-you-are-out  provision,  because  there  is  a  collec- 
tive anger  that  is  building  in  society  saying  that  we  are  putting  too 
much  emphasis  perhaps  on  rehabilitation  and  not  enough  on  pun- 
ishment. 

Now,  in  your  article  I  think  you  pointed  out  that  there  is  some 
moderate  correlation  that  is  shown  to  exist  between  deterrence  and 
the  certainty  of  imprisonment  as  a  sentence,  even  though  this  is 
subject  to  question.  I  do  not  disagree  with  that.  I  have  heard  a 
number  of  speeches  given  by  Rev.  Jesse  Jackson  in  which  he  points 
out  that  for  many  of  the  individuals  who  are  now  being  sent  off  to 
prison,  it  is  not  a  step  down,  it  is  a  step  up.  They  are  coming  out 
of  poverty  and  deprivation  and  lawlessness,  and  going  to  a  place 
where  they  can  in  fact  receive  meals  and  cable  television  and  pret- 
ty warm  accommodations  which  they  do  not  have  out  on  the  street. 

So  I  am  not  sure  what  the  answer  is.  There  maybe  a  correlation 
between  the  certainty  of  imprisonment  and  deterrence.  I  do  not 
know.  I  do  not  have  the  answer  to  that,  but  we  are  all  struggling 
with  that  right  now.  It  seems  to  me  that  the  more  we  read  about 
it,  we  have  got  at  least  one  generation,  possibly  two,  that  are  com- 
ing up  in  an  atmosphere  which  is  almost  tantamount  to  the  "Lord 
of  the  Flies."  There  is  no  sense  of  morality. 

I  saw  one  interview  recently  in  which  inmates,  career  criminals, 
who  have  been  in  prison  for  15-20  years  are  shocked  by  the  amo- 
rality  of  the  individuals  coming  into  the  prison  system  today.  They 
would  say,  that  when  they  robbed  a  person  they  would  take  the 
money  and  leave.  Today,  criminals  take  the  money  and  kill  you 
anyway. 

So  we  have  a  long-term  problem  and  we  have  a  short-term  prob- 
lem. The  long-term  problem  obviously  has  to  do  with  racism  in  our 
society,  with  giving  people  who  have  been  deprived  an  opportunity 
to  rise  and  to  flourish  and  receive  an  education  and  to  nurture 
those  individuals  who  do  not  otherwise  have  a  fair  chance. 

At  the  same  time,  we  have  a  short-term  problem,  and  the  short- 
term  problem  has  to  be  to  get  the  violent  criminals  off  the  street, 
because  most  people  today,  particularly  in  this  city — and  I  am  sure 
in  both  Ohio  and  Louisiana — are  frightened.  Fear  is  the  biggest 
issue  on  the  minds  of  the  American  people  today,  even  above  that 
of  health  care  reform  or  welfare  reform.  Fear  of  being  a  victim  of 
a  violent  criminal  act  is  perhaps  foremost  in  the  minds  of  the 
American  people. 

So  I  hope  as  you  serve  in  this  capacity,  you  will  take  that  into 
account,  understanding  that  retribution,  a  collective  societal  ret- 
ribution, is  also  a  very  important  element  in  preserving  a  respect 
for  the  law. 

Ms.  Berrigan.  I  have  been  a  crime  victim  myself,  so  I  know  the 
feeling. 


39 

Senator  COHEN.  Thank  you. 

Senator  Metzenbaum.  Thank  you  very  much,  Senator  Cohen. 

Ms.  Berrigan,  what  is  the  Forum  for  Equality? 

Ms.  Berrigan.  The  Forum  for  Equality  is  an  organization  that 
was  created  about  4  or  5  years  ago  now  in  New  Orleans,  with  two 
purposes.  The  first  purpose  was  to  promote  equal  rights  for  all  mi- 
norities, regardless  of  race,  religion,  gender,  age,  sexual  orienta- 
tion, disabilities,  basically  the  whole  gamut,  almost  like  an  um- 
brella, but  to  be  also  a  political  advocate  which,  for  example,  the 
American  Civil  Liberties  Union  is  not.  The  ACLU  does  not  get  in- 
volved in  political  campaigns.  The  Forum  for  Equality  does.  It  en- 
dorses candidates,  interviews  candidates  and  so  forth. 

The  second  mission  of  the  Forum  for  Equality  was  to  promote 
good  government.  Louisiana  has  an  unusual  history  in  that  regard, 
so  we  felt  that  it  was  important  to  have  that  as  part  of  our  mission, 
as  well.  So  it  is  really  a  dual  mission  organization  to  promote  equal 
rights  for  all  minorities  and  good  government  from  all  our  public 
officials. 

Senator  Metzenbaum.  Thank  you  ver>'  much.  I  must  say  that  I 
did  not  think  I  would  ever  sit  here  and  have  the  president  of  the 
ACLU  in  New  Orleans  and  a  very  active  member  of  the  Forum  for 
Equality — I  guess  you  are  a  member — come  up  as  a  nominee  for 
the  Federal  district  bench.  I  am  pleased  to  see  it,  and  I  congratu- 
late you.  I  more  particularly  congratulate  the  Senators  who  I  as- 
sume nominated  you. 

Ms.  Berrigan.  Thank  you  very  much,  Senator. 

Senator  Metzenbaum.  Thank  you. 

The  last  nominee  is  Tucker  Melancon,  a  Greek  name,  sir? 

Mr.  Melancon.  French. 

Senator  Metzenbaum.  Do  you  solemnly  swear  to  tell  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  so  help  you  God? 

Mr.  Melancon.  I  do. 

TESTIMONY  OF  TUCKER  MELANCON,  OF  LOUISIANA,  TO  BE 
U.S.  DISTRICT  JUDGE  FOR  THE  WESTERN  DISTRICT  OF  LOU- 
ISIANA 

Senator  Metzenbaum.  Would  you  like  to  introduce  members  of 
your  family? 

Mr.  Melancon.  With  the  chairman's  permission,  I  would  like  to 
remain  standing,  so  I  do  not  forget.  As  Senator  Breaux  said  in  his 
introduction,  I  have  got  quite  a  contingent  to  come  up  from  Louisi- 
ana and  I  have  some  friends  from  the  Washington  area  I  would 
like  to  introduce. 

Senator  Metzenbaum.  Please,  whatever  is  convenient  for  you. 

Mr.  Melancon.  My  wife  Kitty;  my  daughter  Robin  and  her  hus- 
band A.J.  Roy;  my  son  Ben  and  his  brand-new  wife  Celeste;  my  law 
partner  and  step-brother  Rodney  Rabalais,  his  wife  Wanda,  and  my 
nephew  Kevin;  and  a  friend  of  mine  from  Marksville,  LA;  from  my 
hometown  Glenn  Groudeau  and  his  wife  Jo,  and  their  sons  Beau 
and  Jacques.  I  also  have  from  Senator  Breaux's  office  a  young  lady 
from  my  hometown.  Celeste  Coco,  and  another  young  lady  from  my 
hometown  who  is  a  student  in  Washington,  Shibohan  Dupuy. 

Last,  I  would  once  again  like  to  recognize  a  long-time  great 
friend  of  mine,  Jim  Brady. 


40 

Senator  Metzenbaum.  Thank  you  very  much.  I  am  pleased  that 
we  have  helped  improve  the  airline  economy  between  Louisiana 
and  here.  Between  you  and  Ms.  Berrigan,  it  is  a  good  grouping. 

Senator  COHEN.  You  have  also  complicated  our  lives.  We  had  just 
gotten  used  to  addressing  General  Shalikashvili.  Now  you  have 
given  us  a  new  name  to  master  here  today. 

Senator  Metzenbaum.  Do  you  have  an  opening  statement? 

Mr.  Melancon.  No,  Mr.  Chairman,  other  than  to  say  that  I  am 
honored  to  be  here. 

Senator  Metzenbaum.  You  served  on  the  Committee  to  Study 
the  Backlog  in  Louisiana  Court  of  Appeal  for  the  First  and  Third 
Circuits.  Given  your  experience,  if  confirmed,  what  steps  will  you 
take  to  ensure  that  your  docket  progresses  at  as  quick  a  pace  as 
fair  and  reasonable? 

Mr.  Melancon.  Mr.  Chairman,  I  served  on  that  committee  by 
appointment  of  the  Louisiana  Supreme  Court  and  I  think  the  prob- 
lems that  we  found  in  the  first  and  third  circuits  in  the  State 
courts  of  Louisiana  are  not,  based  on  my  present  appreciation  of 
what  I  will  face  as  a  Federal  judge,  if  I  am  so  lucky  to  be  con- 
firmed, are  not  the  same. 

I  agree  with  what  has  been  said  earlier,  that  I  think  a  Federal 
judge  needs  to  be  a  hands-on  judge,  if  you  are  going  to  be  in  a  posi- 
tion to  control  the  docket,  and  by  that  I  mean  to  be  involved  at 
each  stage.  I  think  my  appreciation  of  rule  16  conferences  and  the 
procedures  that  have  been  recommended,  based  on  my  recent  read- 
ings in  the  use  of  magistrate  judges,  will  help  in  that  regard. 

In  my  particular  situation,  the  Monroe  division,  which  I  have 
been  nominated  for,  the  six  other  judges  of  the  western  district 
have  done  a  magnificent  job  in  trying  to  keep  that  docket,  particu- 
larly the  criminal  docket,  as  current  as  possible.  This  position  has 
been  vacant  for  approximately  2  years  and  they  have  done  a  real 
good  job.  I  think  right  now  there  are  about  430  cases  pending. 

Senator  Metzenbaum.  Mr.  Melancon,  I  notice  that  you  have  had 
a  considerable  business  interest  in  a  number  of  different  busi- 
nesses. What  portion  of  your  time  has  been  devoted  to  the  law  and 
what  portion  to  your  business  enterprises? 

Mr.  Melancon.  Mr.  Chairman,  I  would  say  candidly  about  110 
percent  of  my  time  to  the  law.  Except  for  a  period  from  about  1980 
to  1991,  when  I  was  involved  as  an  investor  in  a  restaurant,  the 
investment  went  bad  because  of  some  improper  management,  and 
for  a  short  time  I  was  actually  in  the  restaurant  business. 

Other  than  that,  the  business  activities  that  are  mentioned  in 
the  information  I  have  supplied  to  the  committee  were  basically  as 
investor  in  most  instances  with  a  step-brother  and  a  brother-in- 
law,  and  I  did  serve  in  a  technical  sense  as  a  member  of  the  board 
of  directors  for  a  closely  held  corporation.  But  I  have  been  a  full- 
time  lawyer  for  most  of  the  20-plus  years  that  I  practiced  law. 

Senator  Metzenbaum.  What  kind  of  community  activities  have 
you  engaged  in? 

Mr.  Melancon.  I  have  been  involved  basically  early  on  when  I 
got  out  of  law  school  in  civic  organizations  such  as  the  Jaycees.  I 
have  been  very  active  in  the  Boy  Scouts,  not  in  recent  years,  but 
T  was  an  Eagle  Scout  and  was  involved  when  I  got  out  of  law  school 


41 

and  during  the  period  in  which  my  son  was  a  Boy  Scout.  He  is  also 
an  Eagle  Scout. 

Senator  Metzenbaum.  As  you  know,  the  Rules  of  Civil  Procedure 
allow  judges  to  impose  sanctions  against  lawyers  or  parties  who  file 
frivolous  lawsuits.  Recently  there  has  been  much  debate  over  the 
courts'  increased  willingness  to  punish  litigants  under  rule  11. 

Now,  I  have  not  practiced  for  a  good  many  years,  but  I  am  rather 
sensitive  about  the  pendulum  swinging  to  the  place  where  the 
judges  start  to  punish  lawyers  for  bringing  cases,  rather  than  let- 
ting the  cases  proceed  or  else  dismissing  the  case  and  not  punish- 
ing the  lawyers.  Some  lawyers  have  actually  argued  the  rule  has 
been  applied  to  chill  pursuit  of  new  and  creative  arguments  in  de- 
veloping areas  of  the  law,  such  as  civil  rights.  One  judge  recently 
stated  "today's  frivolity  may  be  tomorrow's  precedent." 

Given  your  experience  as  a  htigator,  what  is  your  view  about 
when  rule  11  sanctions  should  be  imposed? 

Mr.  Melancon.  Mr.  Chairman,  I  share  your  concern  that  rule  11 
can,  if  misused,  have  a  chilling  effect,  and  I  was  struck  by  some 
of  the  comments  Senator  Specter  made  to  both  of  the  nominees 
from  Pennsylvania  in  the  way  that  a  judge  treats  the  members  of 
the  bar  and  the  public  that  comes  before  a  court. 

But  I  think  that  rule  11,  when  used  appropriately,  there  is  a 
valid  reason  for  it,  but  I  think  it  can  certainly  be  abused.  Again, 
as  a  practicing  lawyer,  I  do  not  think  that  will  be  a  problem  for 
me. 

Senator  Metzenbaum.  Were  you  plaintiffs'  lawyer  or  defendants' 
lawyer  mostly? 

Mr.  Melancon.  Well,  it  is  quite  interesting  to  answer  the  ques- 
tion. I  practice  in  a  rural  area,  a  town  of  about  5,000,  and  I  guess 
for  the  first  17  years  I  was  primarily  a  plaintiffs'  lawyer.  For  sev- 
eral reasons,  the  last  2V2  to  3  years  I  have  primarily  been  a  de- 
fense attorney,  although  my  firm,  which  is  comprised  of  my  partner 
who  I  introduced  earlier  and  one  associate,  continues  to  have  a  var- 
ied practice. 

Senator  Metzenbaum.  Senator  Cohen. 

Senator  Cohen.  Thank  you,  Mr.  Chairman. 

Is  your  partner's  name  Rabalais? 

Mr.  Melancon.  Rabalais. 

Senator  Cohen.  Rabalais,  I  want  to  make  sure  I  get  that  one 
right. 

First  of  all,  Senator  Metzenbaum  I  think  has  a  strong  conflict  of 
interest  in  asking  you  the  question  as  to  whether  or  not  you  would 
be  receptive  to  complaints  being  brought  by  creative  plaintiffs.  He 
is  about  to  leave  the  Senate  and  he  will  probably  go  back  into  the 
practice  of  law.  Given  his  creative  talents  on  the  Senate  floor,  he 
is  probably  worried  that  the  courts  are  going  to  take  into  account 
that  he  might  be  filing  frivolous  lawsuits,  but  most  of  us  by  virtue 
of  experience  know  that  he  will  be  in  the  forefront  or  at  least  10 
years  ahead  of  his  time.  So  I  think  there  is  a  conflict  of  interest 
with  that  statement. 

Senator  Metzenbaum.  There  are  a  few  cases  I  tend  to  file  in 
New  Orleans.  [Laughter.] 


42 

Senator  COHEN.  Most  of  your  practice,  as  I  understand  it,  has 
been  on  the  civil  side,  if  not  all  of  it,  at  the  State  level.  Have  you 
practiced  to  any  significant  degree  before  the  Federal  courts? 

Mr.  Melancon.  In  recent  years,  Senator,  I  have  had  the  oppor- 
tunity as  part  of  the  defense  work  I  have  been  doing  to  represent 
the  Louisiana  Sheriffs  Risk  Management  Program,  and  we  have 
been  involved  in  a  number  of  prisoner  cases,  some  personal  injury 
cases  against  the  Louisiana  Sheriffs  Risk  Management  Program. 

I  have  also  had  the  opportunity  to  have  a  number,  I  guess  over 
the  20  years  probably  15  to  20  admiralty-type  cases,  and  I  have 
had  several  trials  against  various  Government  entities,  the  VA  hos- 
pital comes  to  mind.  The  bulk  of  my  practice  has  been  in  State 
court. 

Senator  COHEN.  I  assume,  like  Ms.  Berrigan,  you  are  going  to  a 
trial  judges'  school? 

Mr.  Melancon.  This  week,  yes,  sir. 

Senator  Cohen.  I  would  just  say  for  the  benefit  of  those  in  the 
audience  I  suspect  that  people  are  not  aware  of  exactly  how  de- 
manding a  trial  judge's  job  is.  You  have  got  to  make  quick  decisions 
on  spur-of-the-moment  evidentiary  decisions,  and  someone  is  al- 
ways looking  over  your  shoulder.  They  may  be  big  cases  or  small 
cases,  but  eventually  you  are  going  to  have  an  appellate  court  look- 
ing over  your  shoulder  and  possibly  a  Supreme  Court,  and  it  is  a 
tremendous  burden  upon  any  Federal  district  court  judge.  I  would 
say  more  so  than  for  the  circuit  court  judges. 

They  have  a  tough  job,  but  it  is  really  not  nearly  as  tough  as  you 
will  have,  because  you  are  on  the  spot  and  you  must  make  instan- 
taneous decisions  in  terms  of  whether  something  is  admitted,  ex- 
cluded, overruled,  et  cetera. 

So  good  luck  to  you  in  your  school.  It  is  going  to  be  very  impor- 
tant to  you,  and  I  am  sure  that  both  of  you  will  have  to  have  some 
on-the-job  experience  or  training.  It  is  going  to  be  a  very  difficult 
job.  That  is  why  we  insist  that  the  people  who  come  before  us  are 
as  qualified  as  possible  and  as  highly  intelligent  and  capable  as 
possible,  because  it  is  going  to  be  a  very  vigorous  and  demanding 
job  on  your  part. 

Good  luck. 

Mr.  Melancon.  Thank  you  very  much.  Senator. 

Senator  Metzenbaum.  Thank  you  very  much,  Senator  Cohen. 

Thank  you,  I  might  say,  for  spending  the  afternoon  here. 

Thank  you  very  much,  and  we  wish  you  well. 

Mr.  Melancon.  Thank  you,  Mr.  Chairman. 

Senator  Metzenbaum.  This  hearing  stands  adjourned. 

[Whereupon,  at  4:22  p.m.,  the  committee  was  adjourned.] 

[Submissions  for  the  record  follow:] 


43 


SUBMISSIONS  FOR  THE  RECORD 


United  States  Senate 

1.  Full  name  (include  any  former  names  used). 

Judith  Ann  Wilson  Rogers  (Judy) 

2.  Addresses:   List  current  place  of  residence  and  office 
address (es) : 

Home:  111  Third  Street,  N.E. 
Washington,  D.C.  20002 
Telephone:  202-546-7472 

Office:  D.C.  Court  of  Appeals 
500  Indiana  Av.,  N.W. 
Washington,  D.C.  20001 
Telephone:  202-879-2770 

3.  Date  and  place  of  birth: 

July  27,  1939;  New  York,  N.Y. 

4.  Martial  Status  (include  maiden  name  of  wife,  or  husband's 
name) .   List  spouse's  occupation,  employer's  name  and  business 
address (es) : 

Divorced,  August  8,  1978,  from  Stephen  Childs  Rogers, 
Esquire,  503  A  Street,  S.E. ,  Washington,  D.C.  20003  (202-546- 
5926) . 

5.  Education;   List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees  received,  and 
dates  degrees  were  granted. 

Radcliffe  College:  1958-1961,  A.B.  degree,  cum  laude  (1961). 
Harvard  Law  School:  1961-1964,  LL.B  (1964). 
University  of  Virginia  Law  School:  1986-1988,  LL.M.  degree 
(1988)  . 

6.  Employment  Record:   List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other 
enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 

Summer  1961:  survey  analyst  for  Conover-Mast  Publishing  Co., 
205  East  42nd  Street,  New  York,  N.Y. 

Summer  1962:  Assistant  to  W.  Barton  Leach,  Professor  of  Law, 

1 


44 


Harvard  Law  School,  Cambridge,  MA. 

Summer  1963:  Aide  to  counsel  for  the  President's  Commission 
on  Juvenile  Delinquency  and  Youth  Crime,  U.S.  Department  of 
Justice,  Washington,  D.C. 

1964-65:  Law  Clerk,  Juvenile  Court  of  the  District  of 
Columbia. 

1965-1968:  Assistant  United  States  Attorney  for  the  District 
of  Columbia,  U.S.  Department  of  Justice,  Washington,  D.C. 

1968-1969:  Staff  attorney,  San  Francisco  Neighborhood  Legal 
Assistance  Foundation,  1095  Market  Street,  San  Francisco,  CA. 

s 

1969-1971:  Trial  attorney.  Criminal  Division,  U.S. 
Department  of  Justice,  Washington,  D.C. 

1971-72:  General  Counsel,  Congressional  Commission  on  the 
Organization  of  the  District  Government,  Washington,  D.C. 

1972-74:  Legislative  Program  Coordinator,  Office  of  the 
Assistant  to  the  Mayor-Commissioner,  and  subsequently  in  the 
Office  of  the  Mayor,  District  of  Columbia  government. 

1974-79:  Special  Assistant  for  Legislation  to  the  Mayor, 
District  of  Columbia  government. 

1979  (January  to  April  15) :  Assistant  City  Administrator  for 
Intergovernmental  Relations,  District  of  Columbia  government. 

1979-1983:  Corporation  Counsel  for  the  District  of  Columbia. 

1983  to  present,  associate  judge  (1983-88)  and  Chief  Judge 
(November  1,  1988  to  present),  District  of  Columbia  Court  of 
Appeals. 

7.  Military  Sei-vice:   Have  you  had  any  military  service?  If  so, 
give  particulars, including  dates,  branch  of  service,  rank  or 
rate,  serial  number  and  type  of  discharge  received. 

No, 

8.  Honors  and  Awards.   List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee, 

Phi  Beta  Kappa,  Radcliffe  College,  June  3,  1986. 

Certificate  of  Appreciation,  in  recognition  of  outstanding 
service  as  Chief  Judge  of  the  District  of  Columbia  Court  of 
Appeals, .Bar  Association  of  the  District  of  Columbia,  November 

■  -y. 

2 


45 


15,  1991. 

Woman  Lawyer  of  the  Year  Award,  Wonen's  Bar  Association  of 
the  District  of  Columbia,  May  30,  1990. 

Chairman's  Special  Award,  The  Judicial  Council  of  the 
National  Bar  Association,  August  1,  1990. 

Charlotte  Ray  Award,  Greater  Washington  Area  Chapter,  Women 
Lawyers'  Division,  National  Bar  Association,  1989. 

Distinguished  Public  Service  Award,  District  of  Columbia 
government,  September  13  1983. 

Outstanding  Performance  Citation  by  Mayor  Walter  E. 
Washington,  for  period  April  1,  1977  to  March  31,  1979. 

Resolution  of  the  Council  of  the  District  of  Columbia  in 
Recognition  of  skillful  and  effective  representation  of  the 
District  government,  "Judith  W.  Rogers,  Esquire,  Resolution  of 
1983,"  No.  5-285,  July  12,  1983. 

Proclamation  by  Mayor,  proclaiming  September  13,  1983  as 
"Judith  W.  Rogers  Day"  in  the  District  of  Columbia  in  recognition 
of  dedicated  and  distinguished  service. 

Citizens'  Citation  for  outstanding  service,  Self- 
Determination  for  D.C.  Coalition,  following  enactment  by  Congress 
of  the  D.C.  Self -Government  and  Governmental  Reorganization  Act 
of  1973. 

Honorary  Doctor  of  Laws,  University  of  the  District  of 
Columbia  School  of  Law,  May  1992. 

9-  Bar  Associations;   List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are  or 
have  been  a  member  and  give  the  titles  and  dates  of  any  offices 
which  you  have  held  in  such  groups. 

Member: 

American  Bar  Association,  1984  to  present; 

Life  Member  of  the  Fellows  of  the  American 
Bar  Foundation,  1992 
D.C.  Bar,  1974  to  present. 
Bar  Association  of  the  District  of  Columbia,  1966-67;  1983 

to  present, 
Washington  Bar  Association,  1983  to  present. 
National  Bar  Association,  1988  to  present. 
National  Association  of  Women  Judges,  1983  to  present. 
Council  for  Court  Excellence,  ex  officio,  1988  to  present. 
Conference  of  Chief  Justices,  1988  to  present: 

Executive  Committee,  1993  to  present. 


46 


10.  other  Memberships;   List  all  organizations  to  which  you 
belong  that  are  active  in  lobbying  before  public  bodies.   Please 
list  all  other  organizations  to  which  you  belong. 

Conference  of  Chief  Justices,  1988  to  present. 

Wider  Opportunities  for  Women,  Board  of  Directors,  1972-74 

Friends  of  the  D.C.  Superior  Court,  Board  of  Directors, 

1972-74 
Radcliffe  College,  trustee,  1982  to  1988 
Harvard  University,  Visiting  Conmittee  to  the  law  school, 

1984  to  1990 
St.  Mark's  Episcopal  Church,  1981  to  present. 
The  Cosmos  Club,  1990  to  present. 
The  Lawyers  Club,  1990  to  present. 

11.  Court  Admission:   List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses  if  any 
such  memberships  lapsed.   Please  explain  the  reason  for  any  lapse 
of  membership.   Give  the  same  information  for  administrative 
bodies  which  require  special  admission  to  practice. 

United  States  Supreme  Court,  May  14,  1979. 

United  States  Court  of  Appeals  for  the  District  of  Columbia 

Circuit,  October  11,  1965. 

United  States  District  Court  for  the  District  of  Columbia, 

June  21,  1965. 

District  of  Columbia  Court  of  Appeals,  April  1,  1972. 

Superior  Court  of  the  District  of  Columiba,  April  1,  1972. 

D.C.  Court  of  General  Sessions,  October  7,  1969.  (Admitted 

to  predecessor  court,  June  21,  1965) 

12.  Published  Writings:   List  the  titles,  publishers,  and  dates 
of  books,  articles,  reports,  or  other  published  material  you  have 
written  or  edited.   Please  supply  one  copy  of  all  published 
material  not  readily  available  to  the  Committee.   Also,  please 
supply  a  copy  of  all  speeches  by  you  on  issues  involving 
constitutional  law  or  legal  policy.   If  there  were  press  reports 
about  the  speech  and  they  are  readily  available  to  you,  please 
supply  them. 

All  of  my  published  writings  appear  in  the  form  of  (1) 
testimony  before  Congress  or  the  Council  of  the  District  of 
Columbia  on  proposed  legislation,  including  budget  requests,  and 
(2)  published  opinions  as  a  judge  on  the  D.C.  Court  of  Appeals. 
A  summary  of  the  nature  of  my  testimony  before  the  D.C.  Council 
appears  at  Tab  1. 

My  speeches  have  addressed  the  needs  of  the  Judicial  Branch 
of  the  District  government,  but  generally  have  not  addressed 
legal  policy.   I  attach  a  copy  of  my  speech  to  the  Fellows  of  the 


47 


American  Bar  Foundation,  District  of  Columbia,  May  12,  1992.  See 
Tab  2. 

13.  Health;   What  is  the  present  state  of  your  health.   List  the 
date  of  your  last  physical  exeunination. 

My  health  is  excellent.   My  last  physical  exiunination  was  on 
February  22,  1993. 

14.  Judicial  Office;   State  (chronologically)  any  judicial 
offices  you  have  held,  whether  such  position  was  elected  or 
appointed,  and  a  description  of  the  jurisdiction  of  each  such 
court . 

1983;  Appointed  by  President  Ronald  Reagan,  and  confirmed  by 
the  United  States  Senate,  to  a  fifteen-year  term  on  the  D.C. 
Court  of  Appeals. 

1988;  Designated  by  the  D.C.  Nomination  Commission  to  a 
four-year  term  as  Chief  Judge,  D.C.  Court  of  Appeals,  beginning 
November  1,  1988. 

1992:  Redesignated  by  the  D.C.  Nomination  Commission  to  a 
second  four-year  term  as  Chief  Judge,  D.C.  Court  of  Appeals, 
beginning  November  1,  1992. 

The  D.C.  Court  of  Appeals  is  the  highest  court  in  the 
District  of  Columbia.   Created  by  Congress  in  1970,  the  Court 
functions  like  the  state  appellate  courts.   It  performs  both 
error-review  and  jurisprudential  functions.   Appeals  from 
decisions  of  the  D.C.  Court  of  Appeals  are  to  the  United  States 
Supreme  Court  on  a  petition  for  certiorari  review.   The  Court 
consists  of  nine  judges,  who  sit  in  three-judge  panels; 
occasionally,  the  Court  sits  en  banc. 

The  D.C.  Court  of  Appeals  has  jurisdiction  to  hear  all 
appeals  in  civil,  criminal  and  administrative  agency  cases.   It 
also  has  original  jurisdiction  in  some  matters,  including 
attorney  discipline.   Because  the  District  of  Columbia  has  state, 
county  and  municipal  responsibilities,  the  D.C.  Court  of  Appeals 
hears  the  same  types  of  appeals  as  the  appellate  courts  in  the 
states,  with  the  exception  of  state  constitutional  issues.   The 
federal  rules  of  criminal  and  civil  procedure  apply  in  the  trial 
court,  except  as  modified  upon  approval  of  the  Court  of  Appeals. 
The  United  States  Attorney  for  the  District  of  Columbia  is  both 
the  local  and  federal  prosecutor  in  the  District  of  Columbia,  and 
hence,  the  Justice  Department  appears  in  nearly  all  criminal 
appeals. 

15.  Citations:   If  you  are  or  have  been  a  judge,  provide:  (1) 
citations  for  the  ten  most  significant  opinions  you  have  written; 


48 


(2)  a  short  suminaxy  of  and  citations  for  all  appellate  opinions 
where  your  decisions  were  reversed  or  where  your  judgment  was 
affirmed  with  significant  criticism  of  your  sxibstantive  or 
procedural  rulings;  and  (3)  citations  for  significant  opinions  on 
federal  or  state  constitutional  issues,  together  with  the 
citation  to  appellate  court  rulings  on  such  opinions.   If  any  of 
these  opinions  lists  were  not  officially  reported,  please  provide 
copies  of  the  opinions. 

(1)  Ten  significant  opinions  that  I  have  written  on  behalf 
of  the  D.C.  Court  of  Appeals: 

1.  Hessey  V.  Bd  of  Elections  &  Ethics ,    601  A. 2d  3  (D.C.  1991)  (en 
banc) . 

2.  Scott  V.  United  States,    559  A. 2d  745  (D.C.  1989)  (en  banc). 

3.  Battle  V.  U.S. ,    630  A. 2d  211  (D.C.  1993). 

4.  Johnson  V.  U.S. ,    616  A. 2d  1216  (D.C.  1992). 

5.  Caldwell  V.  U.S. ,    No.  595  A. 2d  961  (D.C.  1991) 

6.  Durant  V.  U.S. ,    551  A.  2d  1318  (D.C.  1988). 

7.  Newspapers,  Inc.  v.  Metropolitan  Police  Dept. ,    546  A.  2d  990  (D.C. 

1988) . 

8.  Stutsman  V.  Kaiser  Found.  Health  Plan ,    54  6   A.  2d   3  67    (D.C. 

1988) . 

9.  Embassy  of  Benin  v.  D.C.  Bd.  of  Zoning  Adjustment ,    534   A. 2d   310 

(D.C.     1987). 

10.  Sherrod  V.  U.S. ,    478  A. 2d  644  (D.C.  1984). 

(2)  Summary  and  citation  where  my  decision  was  reversed  or 
affirmed  with  significant  criticism: 

This  has  occurred  when  the  en  banc  court  has  reversed  a 
decision  of  a  three-judge  division: 

1.  Harris  V.  U.S. ,    602  A. 2d  154  (D.C.  1992)  (en  banc)  (whether 
"plain  error"  requiring  reversal  occurred  where  appellant  claimed 
prosecutorial  misconduct,  trial  judge  error,  and  unprofessional 
conduct  by  defense  counsel) 

2.  Speight  V.  U.S. ,    569  A. 2d  124  (D.C.  1989)  (en  banc) 
(constitutionality  of  statute  allowing  enhancement  of  sentence, 
in  absence  of  finding  of  culpability  for  first  offense,  when 


49 


defendant  commits  second  offense  while  on  pretrial  release  for 
first  offense  and  the  sentence  exceeds  the  combined  maximum 
penalty  for  conviction  for  second  offense  and  the  penalty  for 
violating  a  condition  of  pretrial  release) . 

3.  Cousart  V.  U.S. ,    618  A. 2d  96  (D.C.  1992)  (en  banc)  (in 
absence  of  articulable  suspicion  of  automobile  passenger,  whether 
passenger  was  seized  in  violation  of  the  Fourth  Amendment  when 
told  by  police  officer  holding  shotgun  in  the  "ready"  position  to 
reach  for  the  ceiling  of  car) . 

(3)   Significant  opinions  on  federal  or  state  constitutional 
issues. 

1.  Darabv.US.,    623  A. 2d  127  (D.C.  1993) 

2.  In  re  AS.,    614  A. 2d  534  (D.C.  1992) 

3.  Ceddwell  V.  U.S. ,    595  A. 2d  961  (D.C.  1991) 

4.  Guadaloupe  V.  United  States ,    585  A. 2d  1348  (D.C.  1991) 

5.  Galbertb  V.  U.S. ,    590  A. 2d  990  (D.C.  1991);  after  remand, 
Taylor  V.  U.S. ,    595  A. 2d  1007  (D.C.  1991) 

6.  Wbeelock  V.  U.S. ,    552  A. 2d  503  (D.C.  1988) 

16.  Public  Office;   State  (chronologically)  any  public  office  you 
have  held,  other  than  judicial  offices,  including  the  terms  of 
service  and  whether  such  positions  were  elected  or  appointed. 
State  (chronologically)  any  unsuccessful  candidacies  for  elective 
public  office. 

Assistant  United  States  Attorney  for  the  District  of 
Columbia,  appointed  by  Attorney  General  Nicholas  deB.  Katzenbach, 
November  29,  1965.   Served  until  June  1968. 

Corporation  Counsel  of  the  District  of  Columbia,  appointed 
by  Mayor  Marion  S.  Barry,  April  16,  1979,  and  confirmed  by  the 
Council  of  the  District  of  Columbia,  June  19,  1979.   Served  until 
September  15,  1983. 

I  was  an  unsuccessful  candidate  for  election  to  the  Board  of 
Directors  of  the  D.C.  Bar  in  the  late  1970s. 

17.  Legal  Career; 

a.  Describe  chronologically  your  law  practice  and  experience 
after  graduation  from  law  school,  including: 


50 


1.  whether  you  served  as  a  clerk  to  a  judge,  and  if 
so,  the  name  of  the  judge,  the  court,  and  the  dates  of 
the  period  you  were  a  clerk; 

1964-65:  Law  Clerk,  Juvenile  Court  of  the  District  of 
Columbia:  Chief  Judge  Morris  Miller  (now  deceased).   Some 
assignments  from  the  other  judges:  Judge  Marjorie  Lawson,  Judge 
Orman  Ketchum,  Judge  Aubrey  Robinson,  and  Judge  John  Fauntleroy. 

2.  whether  you  practiced  alone,  and  if  so  the 
addresses  and  dates; 

I  have  never  practiced  alone. 

3.  the  dates,  names,  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies  with  which 
you  have  been  connected,  and  the  nature  of  your 
connection  with  each; 

1965-1968:  Assistant  United  States  Attorney  for  the  District 
of  Columbia,  U.S.  Department  of  Justice,  Washington,  D.C. 
Assigned  for  one  year  to  the  local  court  to  prosecute  misdemeanor 
jury  and  non-jury  trials,  conduct  preliminary  hearings,  motions, 
arraignments,  and  presentments  in  felony  cases.   Supervisor: 
Honorable  Tim  C.  Murphy,  former  trial  court  judge  and  now 
Associate  Attorney  General,  U.S.  Department  of  Justice,  10th 
Street  and  Constitution  Av.,  N.W. ,  Washington,  D.C.  (202-514- 
4945)  . 

Thereafter,  assigned  to  the  United  States  District  Court  for 
the  District  of  Columbia  to  handle  special  proceedings  (habeas 
corpus,  collateral  attacks  on  criminal  convictions,  extradition, 
and  civil  commitments) .   Supervisor:  Oscar  Altshuler  (now 
deceased) .   Also  wrote  three  briefs  in  criminal  cases  before  the 
U.S.  Court  of  Appeals  for  the  District  of  Columbia  Circuit  and 
prepared  comments  for  the  United  States  Attorney  on  federal 
legislation. 

In  1967,  assigned  for  three  months  to  Office  of  Assistant 
Attorney  General  Fred  Vinson  to  work  for  the  Office  of  Criminal 
Justice  on  reorganizing  the  District  of  Columbia  court  system. 
Prepared  a  report  for  the  United  States  Judicial  Conference 
Committee  on  the  Administration  of  Justice,  chaired  by  Gerhart 
Gesell  (later  judge  on  U.S.  District  Court,  D.C,  now  deceased) 
on  a  family  court  branch  in  a  restructured  local  court 
(addressing  rules  and  procedure,  role  of  counsel,  comparison  with 
other  jurisdictions).   Resigned,  June  1968,  because  my  husband 
had  accepted  a  clerkship  in  San  Francisco,  California. 

1968-1969:  Staff  attorney,  San  Francisco  Neighborhood  Legal 
Assistance  Foundation,  1095  Market  Street,  San  Francisco, 
California.   Did  legal  research  on  various  class  action  suits  in 

8 


51 


federal  court.   Represented  clients  in  state  administrative 
proceedings.   Taught  a  clinical  course  on  poverty  law  with  two 
other  attorneys  at  Boalt  Hall,  University  of  California  at 
Berkeley,  California.   Supervisors:  Jerry  Carlin  and  Sidney 
Wolinski,  Esq. 

1969-1971:  Trial  attorney.  Criminal  Division,  U.S. 
Department  of  Justice,  Washington,  D.C.  Assigned  to  the  Office 
of  the  Deputy  Attorney  General  to  develop  legislation  to 
reorganize  the  District  of  Columbia  courts.   Part  of  a  four- 
lawyer  team  that  prepared  draft  legislation,  department  and 
legislative  reports,  and  testimony,  and  worked  with  congressional 
committees  as  the  bill  was  considered  by  the  House  and  Senate. 
The  legislation  creating  a  state-type  court  system  for  the 
District  of  Columbia  was  enacted  as  the  D.C.  Court  Reform  and 
Criminal  Procedure  Act  of  1970,  Pub.  L.  91-358  (July  29,  1970), 
84  Stat.  473.   Supervisor:  Donald  E.  Santarelli,  Esq.,  1155 
Connecticut  Av. ,  N.W. ,  Washington,  D.C.  20036  (202-466-6800). 

In  August  1970,  assigned  to  the  Legislation  and  Special 
Projects  Division  to  prepare  legal  memoranda  for  guidance  of 
United  States  Attorneys'  offices,  reports  on  congressional 
legislation,  and  analysis  of  proposed  changes  in  the  Federal 
Rules  of  Criminal  Procedure.   Supervisor:  Harold  D.  Koffsky 
(deceased) . 

1971-72:  General  Counsel,  Congressional  Commission  on  the 
Organization  of  the  District  Government,  Washington,  D.C. 
Responsibilities  included  review  of  recommendations  to  change  the 
organization  and  responsibilities  of  the  District  government. 
Worked  with  management  staff  on  proposed  legislation  to  establish 
a  new  personnel  system  for  District  government  employees. 
Supervised  five  consultants  who  were  examining  youth  services  in 
response  to  the  recommendations  in  the  1966  report  of  the 
President's  Commission  on  Crime  in  the  District  of  Columbia. 
Supervisor:  John  E.  Hogan,  Executive  Assistant  and  Director,  213 
11th  St.,  S.E.,  Washington,  D.C.  (202-544-2532). 

1972-74:  Legislative  Program  Coordinator,  Office  of  the 
Assistant  to  the  Mayor-Commissioner,  and  subsequently  the  Office 
of  the  Mayor,  District  of  Columbia  government.   Responsible  for 
the  development  of  the  Mayor's  annual  legislative  program  to 
Congress.   During  this  time  I  did  substantial  work  with  District 
and  federal  officials,  congressional  committees  and  staff,  on 
legislation  to  provide  home  rule  in  the  District  of  Columbia. 
The  legislation  was  enacted  as  the  D.C.  Self -Government  and 
Governmental  Reorganization  Act  of  1973,  Pub.L.  93-198  (December 
24,  1973),  87  Stat.  774.   Supervisor:  Hon.  Walter  E.  Washington, 
408  T  Street,  N.W. ,  Washington,  D.C.  20001  (202-DU  7-4613). 

1974-79:  Special  Assistant  to  Mayor  Walter  E.  Washington  for 
Legislation.   Responsible  for  preparation  of  the  Mayor's  annual 


52 


legislative  programs  to  Congress  and  the  new  Council  of  the 
District  of  Columbia.   In  conjunction  with  the  heads  of  the 
departments  and  agencies,  developed  legislative  recommendations 
for  the  Mayor,  drafted  and  analyzed  legislative  proposals,  and 
prepared  and  presented  testimony.   In  1977,  served  as  the  Mayor's 
liaison  to  the  President's  Task  Force  on  the  District  of 
Columbia,  chaired  by  Vice  President  Walter  Mondale;  responsible 
for  preparing  position  papers. 

1979:  January  to  April  15:  Assistant  City  Administrator  for 
Intergovernmental  Relations,  District  of  Columbia  government. 
Responsible  for  annual  legislative  programs  to  Congress  and  the 
Council  of  the  District  of  Columbia,  and  for  the  development  of 
relationships  with  regional  and  national  organizations. 

1979-1983:  Corporation  Counsel  for  the  District  of  Columbia. 
The  Corporation  Counsel  serves  in  a  capacity  similar  to  that  of  a 
state  attorney  general.   Actively  supervised  an  office  of  200 
attorneys,  who  appeared  in  the  federal  and  District  of  Columbia 
courts;  prepared  official  legal  opinions;  commented  on  District 
and  congressional  legislation;  advised  departments  and 
administrative  agencies  on  a  variety  of  legal  issues;  and 
obtained  significant  funding  increases  for  the  District's  legal 
office.  See  Annual  Reports  of  the  Office  of  the  Corporation  Counsel,    at  Tab 
3. 

1983  to  present,  associate  judge  (1983-88)  and  Chief  Judge 
(1988  to  present),  D.C.  Court  of  Appeals,  500  Indiana  Av.,  N.W., 
Washington,  D.C.  20001. 

b.    1.  What  has  been  the  general  character  of  your  law 
practice,  dividing  it  into  period  with  dates  if  its 
character  has  changed  over  the  years? 

1965-1969:  Trial  Litigator.   As  an  Assistant  United  States 
Attorney  for  three  years,  I  prosecuted  criminal  cases  in  the 
District's  trial  court  on  almost  a  daily  basis  and  handled  civil 
proceedings  in  the  United  States  District  Court  on  almost  a 
weekly  basis.   As  a  trial  attorney  in  a  legal  services  program 
for  under  a  year,  I  represented  individual  clients  in  state 
administrative  hearings  and  civil  proceedings  and  also  worked 
with  several  lawyers  in  representing  a  community  organization  in 
a  class  action  suit  in  the  federal  district  court. 

1969-1979:  Legislation.   During  these  years  I  worked 
principally  on  legislation  of  all  types,  in  Congress  and  the 
Council  of  the  District  of  Columbia.   At  the  Justice  Department  I 
worked  on  the  legislation  to  create  the  District's  current  state- 
type  court  system.   In  the  District  government,  I  worked  on  the 
congressional  legislation  to  create  the  current  form  of  local 
government  in  the  District  of  Columbia.   My  experience  spanned 

10 


53 


the  development  of  legislation  through  intra-agency  and  inter- 
agency review  with  local  and  federal  depairtments  and  agencies, 
drafting  and  review  and  preparation  of  testimony  and  legislative 
reports,  and  work  with  congressional  and  Council  committees. 

1979-1983:  Corporation  Counsel  for  the  District  government. 
Like  a  state  attorney  general,  I  was  actively  involved  in  the 
development  of  legal  strategy  and  legal  positions,  formal  legal 
opinions,  regulatory  review  and  advice,  review  of  appellate 
briefs  as  well  as  staff  management,  training,  fiscal  and  budget 
issues.   Congressional  contacts  continued  as  a  result  of 
legislative  work  and  congressional  review  of  budget  requests. 

1983  to  present:  Appellate  Judge.   After  serving  for  five 
years  as  an  Associate  Judge  on  the  District's  highest  court,  I 
was  selected,  by  a  seven-member  Nomination  Committee,  to  be  the 
Chief  Judge.   After  serving  a  four-year  term  as  Chief  Judge,  the 
Nomination  Commission  appointed  me  to  serve  a  second  four-year 
term  as  Chief  Judge.   While  serving  as  Chief  Judge,  I  have 
continued  to  carry  the  full  workload  of  an  associate  judge  in 
addition  to  performing  my  responsibilities  for  administration  of 
the  appellate  court  and  as  chair  of  the  Joint  Committee  on 
Judicial  Administration,  the  policy  making  body  of  the  District 
of  Columbia  Court  system. 

During  my  service  as  Chief  Judge,  the  D.C.  Court  of  Appeals 
has  adopted  and  implemented  a  case  management  program,  added 
calendars,  made  greater  use  of  senior  judges,  streamlined 
procedures,  and  increased  productivity.   In  response  to  four 
independent  studies,  and  upon  exhausting  alternative  solutions,  I 
worked  closely  with  the  Bar  and  other  groups  on  congressional 
legislation  to  establish  an  intermediate  appellate  court.   I 
served  on  the  Conference  of  Chief  Justices  and  was  elected  to  its 
Executive  Committee  in  August  1993. 

While  chairing  the  Joint  Committee  on  Judicial 
Administration,  the  District  of  Columbia  courts  have,  among  other 
things,  adopted  new  personnel  standards,  developed  alternative 
compensation  packages,  and  obtained  increased  funding  for  the 
Judicial  Branch  of  the  District  government.   The  latter  occurred 
with  the  assistance  of  the  Bar,  which  I  sought  out  in  speeches 
and  meetings,  and  resulted  in  testimony  and  letters  as  well  as 
the  preparation  of  a  white  paper  by  the  D.C.  Bar  on  the  need  for 
adequate  funding  of  the  courts.   Also,  of  significance,  under  my 
leadership  the  Joint  Committee  established  task  forces  to  examine 
gender  and  racial  and  ethnic  bias  in  the  courts  and  thereafter 
implemented  recommendations  to  address  bias  in  the  courts.  See 
Annual  Report  of  the  District  of  Columbia  Courts ,  at  Tab  4 . 

2.  Describe  your  typical  former  clients,  and  mention 
the  areas,  if  any,  in  which  you  have  specialized. 

'         11 


54 


My  professional  career  has  been  devoted  to  pxiblic  service. 
With  very  brief  exceptions  I  have  worked  for  either  the  federal 
or  the  District  governments.   Hence,  ny  clients  have  been  the 
government,  and  its  departments,  agencies,  boards  and 
commissions.   As  a  legal  services  attorney,  I  represented 
individual  clients,  including  a  community  organization  seeking 
injunctive  relief  in  federal  court  and  individuals  seeking  state 
administrative  remedies. 

c.    1.   Did  you  appear  in  court  frequently,  occasionally, 

or  not  at  all?   If  the  frequency  of  your  appearances  in 
court  varied,  describe  each  variance,  giving  dates. 

1965-68:  in  court  regularly 
1979-83:  very  rarely 

2.  What  percentage  of  these  appearances  was  in: 

(a)  federal  courts: 

100  percent  1967-68 
50  percent  1979-83 

(b)  state  courts  of  record: 

100  percent  1965-66 
50  percent  1979-83 

(c)  other  courts: 

None. 

3.  What  percentage  of  your  litigation  was: 

(a)  civil: 

40  percent  1966-68 
100  percent  1979-83 

(b)  criminal: 

60  percent  1966-68 

4.  State  the  number  of  cases  in  courts  of  record  you 
tried  to  verdict  or  judgment  (rather  than  settled) , 
indicating  whether  you  were  sole  counsel,  chief 
counsel,  or  associate  covmsel. 

As  a  prosecutor  representing  the  United  States,  I 
conducted  misdemeanor  prosecutions  in  1965-66  on  almost  a  daily 
basis.   I  conducted  forty-one  jury  trials  in  misdemeanor 
prosecutions  in  addition  to  numerous  trials  and  motions  argued 
before  the  court.   From  1967-68,  I  handled  numerous  civil  matters 

12 


55 


in  the  federal  district,  including  civil  commitment  cases  where 
there  were  jury  trials  nearly  every  week.   In  addition,  I 
prepared  pleadings  and  argued  motions  in  extradition  cases, 
collateral  attacks  on  criminal  convictions,  and  responded  to 
petitions  for  writs  of  habeas  corpus. 

5.   What  percentage  of  these  trials  was: 

(a)  jury: 

(b)  non-jury: 

Working  in  a  high  volume  prosecutor's  office,  I  did  not 
keep  records  of  the  percentages.   The  nature  of  the  trials  is 
described  in  response  to  question  4 . 

8.  Litigation:   Describe  the  ten  most  significant  litigated 
matters  which  you  personally  handled.   Give  the  citations,  if  the 
cases  were  reported,  and  the  docket  number  and  date  if 
unreported.   Give  a  capsule  summary  of  the  substance  of  each 
case.   Identify  the  party  or  parties  whom  you  represented; 
describe  in  detail  the  nature  of  your  participation  in  the 
litigation  and  the  final  disposition  of  the  case.   Also  state  as 
to  each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the  judge  or 

judges  before  whom  the  case  was  litigated;  and 

(c)  the  individual  name,  addresses,  and  telephone 
numbers  of  co-counsel  and  of  principal  counsel  for 
each  of  the  other  parties. 

Significant  litigation  in  which  I  was  involved  as 
Corporation  Counsel  included  litigation  (1)  testing  the  scope  of 
delegated  powers  of  the  new  home  rule  government;  (2)  land  use 
within  historic  districts;  (3)  the  municipal  corporation's 
liability  for  common  law  torts,  medical  malpractice,  and 
constitutional  violations;  (4)  contracts,  personnel,  and  labor 
relations;  (5)  presentation  and  review  of  administrative 
proceedings;  (6)  prosecutions  for  minor  misdemeanors,  juvenile 
delinquency,  child  abuse  and  neglect  as  well  as  regulatory 
violations;  and  (7)  enforcement  actions  to  collect  child  support 
as  well  as  taxes  and  other  funds  owed  to  the  District  government. 
See  Annual  Reports  of  the  Office  of  the  Corporation  Counsel,    at  Tab  3  . 
Significant  matters  include: 

Taxing  power:      As  Corporation  Counsel,  I  presented  the 
District  government's  argument  before  the  en  banc  court  in  Bishop 
V.  District  of  Columbia ,    411  A. 2d  997  (D.C.  1980)  (en  banc),  cert, 
denied,    446  U.S.  966  (1980).   The  case  involved  the  taxing 
authority  of  the  new  home  rule  government.   The  Council  of  the 
District  of  Columbia  had  enacted  legislation  to  repeal  an 
exemption  for  lawyers  and  other  professionals  from  the  D.C. 

13 


56 


franchise  tax  on  unincorporated  business.  A  three-judge  division 
of  the  Court  held  that  the  legislation  exceeded  the  powers  of  the 
D.C.  Council  under  the  D.C.  Self -Government  and  Governmental 
Reorganization  Act  of  1970.   The  en  banc  Court  agreed  to  rehear 
the  case.   I  presented  additional  arguments  based  on  the 
provisions  and  legislative  history  of  the  D.C.  Income  and 
Franchise  Tax  Act  of  1947,  which  distinguished  between  the 
proscribed  commuter  tax  on  personal  income  ("income  taxes")  and 
an  unincorporated  business  franchise  tax.   The  en  banc  Court 
nevertheless  concluded  that  the  Council  had  exceeded  its 
authority. 

Attorneys  of  record:   John  M.  Bixler,  Esq.,  655  15th  Street, 
N.W.,  Washington,  D.C.  20005  (202-626-5800),  with  Ronald  D. 
Aucutt,  Esq.,  of  the  same  address  and  telephone  number;  Phillip 
L.  Kellogg,  Esq.,  1275  K  St.,  N.W.,  Washington  D.C,  20005  (202- 
898-0722),  with  James  L.  Lyons,  Esq.,  of  the  same  address  and 
telephone  number. 

Other  examples  of  significant  litigation  in  which  I  had  a 
direct  supervisory  role: 

Personnel  authority :  Barry  et  al.  v.  Public  Employee  Relations  Board,  et 
ai,    No.  C.A.  15364-80  (D.C.  Superior  Court,  June  30,  1981), 
appeal  American  Federation  of  Govt  Employees  v.  Barry,  et  ai  ,    459  A.  2d 
1045  (D.C.  1983).   This  case  involved  the  scope  of  the  District 
government's  authority  to  establish  a  personnel  system  that  was 
independent  of  the  personnel  system  for  federal  government 
employees.   Section  422(3)  of  the  D.C.  Self -Government  and 
Governmental  Reorganization  Act  required  the  District  government 
to  establish  its  own  personnel  system,  but  also  required  that  the 
new  system  include  benefits  "at  least  equal  to"  those  previously 
provided  by  Congress  for  District  government  employees.   I 
recommended  that  the  District  government  file  suit  after  the 
Public  Employee  Relations  Board  issued  an  opinion  requiring 
collective  bargaining  to  set  certain  cost-of-living  increases, 
thereby  purporting  to  limit  the  Mayor's  authority  under  the  newly 
enacted  D.C.  personnel  law.   The  District  government's  motion  for 
summary  judgment  was  granted  by  the  trial  court.   The  work  in 
this  case  provided  the  basis  for  the  District  government's 
position  in  two  other  cases  where  District  government  employees 
raised  the  "at  least  equal  to"  claim.  See  Concerned  Court  Employees 
et  ai  V.  Polansky,  et  ai ,    No.  81-1035  (D.C.  Super.  Ct.  Jan.  29,  1982); 
on  appeal:  478  A.  2d  1096  (D.C.  1984);  Thomas  et  ai  v.  Barry,  et  al , 
No.  92-1920  (D.D.C.  1982),  on  appeal:  234  U.S.  App.  D.C.  370,  729 
F.2d  1469  (1984) . 

Attorneys  for  the  Board:  Thomas  H.  Queen,  Esq.,  530  8th 
Street,  S.E.,  Washington,  D.C.  20003  (202-544-4200). 

Attorneys  for  the  Union  Coalition,  which  intervened  in 

14 


i 


57 


support  of  the  Board:   A.L.  Zwerdling,  Esq.  (deceased)  and  Wendy 
L.  Kahn,  Esq.,  then  at  1730  K  Street,  N.W. ,  Suite  713, 
Washington,  D.C.  2006  (unlisted  in  the  1993  Legal  Register)  . 

Scope  of  the  initiative  power  i      Convention  Center  Referendum  Committee, 
et  al.  V.  D.C.  Bd.  of  Elections  &  Ethics ,    438  A. 2d  132  (D.C.  1981)  (en 
banc) .   This  case  presented  issues  relating  to  the  respective 
authority  of  the  Mayor,  the  Council  of  the  District  of  Columbia, 
and  the  Congress  where  the  electorate,  acting  through  a  citizen 
initiative,  sought  to  prevent  construction  of  a  convention 
center.   Congress  had  appropriated  the  funds  requested  by  the 
Mayor  and  Council  for  construction  of  the  convention  center.   The 
litigation  arose  when  the  Board  of  Elections  rejected  a  proposed 
initiative  to  stop  construction  of  the  center.   The  trial  court 
agreed  with  the  Board,  but  suggested  what  night  be  a  proper 
initiative.   A  second  initiative  was  also  rejected  by  the  Board. 
The  trial  court  denied  the  plaintiffs'  motion  for  declaratory 
relief  and  they  appealed.   A  three-judge  division  of  the  D.C. 
Court  of  Appeals  affirmed  the  trial  court.   The  en  banc  court 
reheard  the  case. 

The  District  government's  initial  brief  focused  on  the 
distinction  between  "legislative"  and  "administrative"  matters  as 
a  basis  for  a  narrow  reading  of  the  initiative.   This  approach 
conflicted  with  the  District  government's  position  that  Congress 
intended  a  broad  delegation  of  legislative  authority  to  the  home 
rule  government.   The  revised  brief  avoided  a  restrictive 
interpretation  of  the  Council's  delegated  powers. 

Attorneys  for  the  plaintiffs:   Williams  F.  Schultz,  Esq., 
Diane  B.  Cohen,  Esq,  and  Alan  B.  Morrison,  Esq,   2000  P  Street, 
N.W.,  Washington,  D.C,  Washington,  D.C.  20036  (202-833-3000) 

Attorneys  for  amici:  James  H.  Heller,  Esq.,  1275  K  Street, 
N.W.,  Washington,  D.C.  20005  (202-898-4800),  and  Arthur  B. 
Spitzer,  Esq.,  1400  20th  Street,  N.W. ,  Washington,  D.C.  20036 
(202-457-0800);  Stephen  Truitt,  Esq.,  1300  19th  Street,  N.W. , 
Washington,  D.C.  20036  (202-828-1452),  and  Deborah  Calloway,  Esq. 
(unlisted  in  1993  Legal  Register)  ,   Jerry  A.  Moore  III,  800  K  Street, 
N.W.,  Washington,  D.C.  20001  (202-408-3220),  and  J.  Kirkwood 
White,  Esq.,  2100  Pennsylvania  Av.,  N.W.,  Washington,  D.C.  20037 
(202-881-1460) . 

Attorney  for  the  Board  of  Elections  and  Ethics:  William  H. 
Lewis,  441  Fourth  Street,  N.W. ,  Washington,  D.c.  20001  (202-727- 
2194)  . 

Constitutional  practices'.      Morgan  et  al.  v.  Barry,  et  al ,    596  F.  Supp. 
879  (D. D.C.  1984).   This  class  action  suit  sought  injunctive 
relief  against  strip  and  squat  searches  and  spraying  of  females 
arrested  and  temporary  detained  at  the  D.C.  Jail,  and  the 

'  ■'■■■  15 


58 


practice  of  holding  males  and  females  in  inadequately  ventilated 
vans.   In  response  to  the  plaintiffs'  first  demand,  the  District 
government  entered  into  an  agreement  to  stop  such  searches  in  the 
absence  of  probable  abuse  to  believe  the  arrestee  had  weapons, 
drugs,  or  other  contraband  on  her  person.   The  District  was 
facing  the  likelihood  of  a  court  order  that  it  had  violated  an 
order  entered  in  Langley  v.  Washington,    No.  75-2058  (D.D.C.  Dec.  23, 
1975) .   The  second  demand,  involving  the  vans,  resulted  in 
lengthy  negotiations.   But  early  resolution  of  the  first  demand 
resulted  in  the  almost  immediate  cessation  of  the  general 
practice  of  strip  and  squat  searches  of  females  awaiting 
arraignment. 

Attorney  for  the  plaintiffs:  Arthur  Spitzer,  Esq.,  1400  20th 
Street,  N.W.,  Washington,  D.C.  20036  (202-457-0800);  Nina  Kraut, 
Esq.,  3815  Yuma  Street,  N.W.,  Washington,  D.C.  20016  (202-745- 
0300) . 

Scope  of  District  government's  public  duty:      Warren  et  al.  v.  District  of 
Columbia,    444  A. 2d  1  (D.C.  1981)  (en  banc).   This  case  involved 
the  public  duty  doctrine,  arising  in  a  negligence  action  brought 
by  two  women  who  were  assaulted  in  their  home  after  the  police 
failed  to  respond  to  their  telephone  calls.   A  three- judge 
division  of  the  D.C.  Court  of  Appeals  reversed  the  trial  court's 
dismissal  of  the  complaint  for  failure  to  state  a  cause  of 
action.   The  en  banc  court  concluded,  however,  that  a  special 
relationship  did  not  arise  as  a  result  of  the  promise  of  the 
police  to  respond. 

Attorney  for  plaintiffs/appellants:  Steven  A.  Friedman, 
Esq.,  6404  Ivy  Lane,  Greenbelt,  Md.  22701  (301-220-2200). 

19.  Legal  Activities;   Describe  the  most  significant  legal 
activities  you  have  pursued,  including  significant  litigation 
which  did  not  progress  to  trial  or  legal  matters  that  did  not 
involve  litigation.   Describe  the  nature  of  your  participation  in 
this  question,  please  omit  any  information  protected  by  the 
attorney-client  privilege  (unless  the  privilege  has  been  waived) . 

As  Corporation  Counsel  for  the  District  government,  I  was 
involved  in  developing  the  government's  legal  position  in  a  large 
number  of  cases.   This  occurred  at  a  significant  time,  shortly 
after  the  home  rule  government  was  formed,  when  it  was  testing 
the  scope  of  the  powers  delegated  to  it  by  Congress.   Having 
worked  on  the  legislation  that  created  the  new  form  of  local 
self-government,  I  was  in  an  almost  unique  position  to  guide  the 
District's  legal  response. 

This  was  accomplished  through  weekly  meetings  with  Division 
Deputies,  who  also  submitted  monthly  litigation  reports,  and 
meeting  on  nearly  a  daily  basis  with  supervising  Deputies  and 

16 


59 


trial  attorneys  as  well  as  the  affected  department  officials  and 
administrative  agencies  to  develop  the  District  government's 
litigation  strategy.   In  addition,  I  reviewed  and  edited 
pleadings  and  briefs.   I  was  fortunate,  as  well,  to  have  the 
assistance  of  very  able  attorneys,  including  Deputies  whom  I 
recruited  or  promoted  from  within  the  ranXs. 

Such  joint  efforts  enabled  the  District  government  to 
prevail  at  times  when  it  otherwise  night  not  have  prevailed,  see, 
e.g.,  Convention  Center  Referendum  Committee  et  at.  v.  D.C.  Bd.  of  Elec.  &  Ethics, 
etal.,    438  A. 2d  132  (D.C.  1981)  (en  banc),  or  forestalled  having 
harsher  judgments  entered  against  the  government.  See,  e.g.,  Morgan 
et  al.  V.  Barry  et  al. ,    596  F.  Supp.  (D.D.C.  1984)  (strip  and  squat 
searches  of  female  prisoners) .   Most  significantly,  it  enabled 
the  new  home-rule  District  government  to  effectively  present  Its 
position,  consistent  with  congressional  reservation  of  certain 
powers  and  constitutional  responsibilities,  that  the 
congressional  delegation  of  the  authority  under  the  D.C.  Self- 
Government  and  Governmental  Reorganization  Act  of  1973,  Pub.  L. 
93-198,  was  intended  to  be  broadly  construed. 


Attachments  (Tabs  1,  2,  3  &  4) 


17 


60 


II.   FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST   (PUBLIC) 

1.  List  sources,  amounts  and  dates  of  all  anticipated  receipts 
from  deferred  income  arrangements,  stock,  options,  uncompleted 
contracts  and  other  future  benefits  which  you  expect  to  derive 
from  previous  business  relationships,  professional  services,  firm 
memberships,  former  employees,  clients  or  customers.   Please 
describe  the  arrangements  you  have  made  to  be  compensated  in  the 
future  for  any  financial  or  business  interest. 

I  will  receive  an  annuity  from  the  District  government  as  a 
result  of  more  than  ten  years  of  judicial  service. 

2.  Explain  how  you  will  resolve  any  potential  conflicts  of 
interest,  including  the  procedure  you  will  follow  in  determining 
these  areas  of  concern.   Identify  the  categories  of  litigation 
and  financial  relationships  that  are  likely  to  present  potential 
conflicts-of-interest  during  your  initial  service  in  the  position 
to  which  you  have  been  nominated. 

Consistent  with  federal  law  and  the  Code  of  Conduct  for 
United  States  Judges,  I  will  continue  my  practice  of  recusing 
myself  in  any  case  in  which  I  have  a  financial  interest  in  a 
party.   I  will  also  recuse  myself  for  two  years  from  sitting  on 
any  case  involving  the  District  of  Columbia  courts  or  court 
employees,  as  well  as  from  cases  involving  those  courts  and 
employees  that  arose  while  I  was  a  District  of  Columbia  judge. 

3.  Do  you  have  any  plans,  commitments,  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during  your 
service  with  the  court?   If  so,  explain. 

I  have  no  such  plans,  commitments  or  agreements. 

4 .  List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends,  interest, 
gifts,  rents,  royalties,  patents,  honoraria,  and  other  items 
exceeding  $500  or  more.   (If  you  prefer  to  do  so,  copies  of  the 
financial  disclosure  report,  required  by  the  Ethics  in  Government 
Act  of  1978,  may  be  substituted  here.) 

See   Tab  5. 

5.  Please  complete  the  attached  financial  net  worth  statement  in 
detail. 

See   Tab  6. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political 


61 


campaign?   If  so,  please  identify  the  particulars  of  the 
campaign,  including  the  candidate,  dates  of  the  campaign,  your 
title  and  responsibilities.  f     'j    ,    yuui 

I  was  a  volunteer  in  several  Democratic  presidential 
campaigns  during  periods  when  I  was  not  otherwise  employed:  1968: 
Humphrey-Muskie;  1972:  McGovern-Eagleton. 


Attachments  (Tabs  5  &  6) 


62 


Sources  of  Income  1992-93 

4.   List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends,  interest, 
gifts,  rents,  royalties,  patents,  honoraria,  and  other  items 
exceeding  $500  or  more.   (If  you  prefer  to  do  so,  copies  of  the 
financial  disclosure  report,  required  by  the  Ethics  in  Government 
Act  of  1978,  may  be  substituted  here.) 

Sources  of  all  income  received  in  1992  and  1993 


??iJ?pdar  i??2 

Judicial  Salary: 

$130,087.40 

Investment  income: 

IBM  sh. 

$1,077 

Waste  Mgmt  sh.     ) 

$319 

Phillip  Morris  sh.) 

Prudential  Bank 

$994 

Am.  Sec.  Bk 

$846 

Citibank 

$2,967 

Second  Nat.  Fed. 

Sav.  Bk 

$2,552 

Meritor  Sav.  Bk 

$7,560 

Crestar  Bk 

$1,885 

Nat.  Trust  Group 

$436 

Calendar  1993 


Judicial-  Salary 
(to  12-11-93) 


$142,032.32 


Investment  Income: 

Phillip  Morris  sh.)  $277 
Waste  Mgt  (now    ) 
WMX  Techs)      ) 
Nat.  Trust  Group     $2,534.90 
Reinvested,  in 

unlisted  securities 
(see  schedule 
attached ,  at 
Tab  6) 


63 


FINANCIAL  STATEMENT 

NET  WORTH 

Provide  a  complete,  current  financial  net  worth  statement 
which  itemizes  in  detail  all  assets  ) including  bank  accounts, 
real  estate,  securities,  trusts,  investments,  and  other  financial 
holdings)  all  liabilities  (including  debts,  mortgages,  loans,  and 
other  financial  obligations)  of  yourself,  your  spouse,  and  other 
immediate  members  of  your  household. 


AgSET? 

Cash  on  hand  in  banks 
Crestar  Bank 
Citibank 

U.S.  Government  Securities: 

Unlisted  Securities 

(see  attached  schedule) 

Accounts  and  notes 
receivable 


$29,738 
$32,419 

none 

$499,590 


none 


LIABILITIES 

No  debts,  mortgages, 
loans  or  other 
financial  obligations 


Real  Estate  owned: 

111  Third  St. ,  N.E. 

(1993  assessed  value)     $332,780 

Real  Estate  mortgages 

receivable  none 


Autos  and  other  personal  property 
1985  Toyota  Corolla 

estimate: 
household  furnishings: 
estimate: 


Cash  value  -  life  insurance 

Other  assets:  itemize: 

Judicial  Retirement 
contributions 


$3,000 

$10,000 

$0 


$109,214 


Total  Assets 


$1,016,741  Total  Liabilities:  $0 
Net  worth  $1,016,741 


64 


Total  liabilities 
and  net  worth: 

$1,016,741 


CONTINGENT  LIABILITIES 


GENERAL  INFORMATION 


None 


Mo  assets  pledged. 

I  am  not  a  defendant  in 
any  suits  or  legal 
actions,  with  the 
possible  exception  of  any 
pending  lawsuit  against 
the  Court  that  names  me 
in  my  official  capacity 
as  a  judge  of  the  D.C. 
Court  of  Appeals.' 


I  have  never  declared 
bankruptcy . 


65 


Unlisted  Securities 
Schedule^ 

1.  Bond  Accounts 

AIM  Ltd.  Mat.  Treas.  $61,492 

Calvert  Tax-Free  Resvs.  $43,100 

2.  Stock  Accounts 

American  Funds: 

Investment  Co.  Amer.  $112,603 

Washington  Mutual  Inv  Fd  $88,414 

New  Perspective  Fd  $51,435 

Growth  Fd  America  $54,462 

3.  Balanced  Accounts 

Defrd  Incm-Lincoln 

Nat  Managed  Fd  $62,340 

IRA  Incm  Fd  America  $25,744 


TOTAL  $499,590 


^   Figures  based  on  latest  1993  reports 


66 


III.   GENERAL  (PUBLIC) 

1.   An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances  and 
the  amount  of  time  devoted  to  each. 

1972-74:  Member  of  the  Board  of  Directors  of  Wider 
Opportunities  for  Women.   This  organization  developed  training 
programs  to  assist  poor,  mostly  minority,  women  in  gaining  skills 
so  that  they  could  become  gainfully  employed.   Meetings  on 
approximately  a  monthly  basis. 

1972-74:  Member  of  the  Friends  of  the  D.C.  Superior  Court. 
This  organization  developed  and  ran  a  child  care  center  for 
parents  who  were  involved  in  court  proceedings  and  had  no  where 
else  to  leave  their  children.   Meetings  held  approximately  every 
other  month. 

1979-83:  As  Corporation  Counsel,  1979-83,  I  met  with 
numerous  community  groups  and  a  variety  of  persons,  most 
frequently  at  night  and  on  weekends,  to  understand  how  the 
District's  legal  office  could  respond  more  effectively  to 
concerns  of  the  disadvantaged.   Such  meetings,  for  example,  led 
to  my  testimony  in  support  to  legislation  to  improve  police 
response  to  domestic  violence  and  work  to  improve  the  Citizens 
Complaint  Center.   Also,  working  with  representatives  of  the 
United  States  Department  of  Health,  Education  and  Welfare,  I 
established  a  child  support  enforcement  section,  resulting  in 
Increased  collections.   I  also  took  steps  to  ensure  that  greater 
efforts  were  made  in  the  areas  of  child  abuse  and  neglect  as  well 
as  in  the  prosecution  of  absentee  slum  landlords.   To  ensure 
continued  responsiveness  to  the  concerns  of  the  disadvantaged,  I 
also  recruited  lawyers  who  had  worked  in  legal  services  programs. 

1982-90:  Trustee  at  Radcllffe  College  (1982  to  1988)  and  a 
member  of  the  Visiting  Committee  at  Harvard  Law  School  (1984  to 
1990) .   I  urged  the  expansion  of  financial  aid  programs  so  that 
disadvantaged  youngsters  would  be  able  to  attend  these  schools 
and  so  that  their  graduates  could  afford  to  work  In  the  public 
sector. 

1988  to  present:  As  Chief  Judge  and  Chair  of  the  Joint 
Committee  on  Judicial  Administration  (the  policy-making  body  of 
the  District  of  Columbia  courts) ,  I  proposed  and  established  task 
forces  on  gender  and  racial  and  ethnic  bias  in  the  courts. 
Although  a  number  of  state  court  systems  had  conducted  gender 
bias  studies,  and  a  few  had  undertaken  racial  bias  studies,  only 


67 


the  District  of  Columbia  courts  pursued  both  areas 
simultaneously.   This  arose  from  my  understanding  that  in  urban 
courts  gender  issues,  particularly  as  they  affect  the 
disadvantaged  seeking  relief  in  the  courts,  often  involve  issues 
of  race  and  ethnicity,  and  vice  versa.   Because  the  sources  of 
the  biases  are  different,  however,  separate  task  forces  were 
needed.   But,  by  working  simultaneously,  and  holding  some  joint 
public  meetings,  the  task  forces  produced  a  Final  Report  with  a 
comprehensive  series  of  recommendations.   I  arranged  for  the 
Annual  Judicial  Conference  of  the  judges  and  the  Bar  to  pursue 
the  issues  presented  in  the  Final  Report.   Thereafter,  I 
contacted  task  force  members  to  serve  on  an  advisory  committee  to 
assist  the  Joint  Committee  in  overseeing  implementation  of  the 
recommendations.   One  year  after  receiving  the  Final  Report,  the 
Joint  Committee  issued  a  report  demonstrating  major 
accomplishments  in  implementing  the  task  forces'  recommendations. 
See  Annual  Report  of  the  District  of  Columbia  Courts,    at  Tab  4 . 

As  Chief  Judge,  in  addition  to  making  numerous  speeches  in 
the  community,  I  have  also  participated  in  the  annual  law  day 
programs  involving  high  school  students  from  public  and  private 
schools. 

2.  The  American  Bar  Association's  Commentary  on  its  Code  of 
Judicial  Conduct  states  that  it  is  inappropriate  for  a  judge  to 
hold  membership  in  any  organization  that  invidiously 
discriminates  on  the  basis  of  race,  sex,  or  religion.   Do  you 
currently  belong,  or  have  you  belonged,  to  any  organization  which 
discriminates  —  through  either  formal  membership  requirements  or 
the  practical  implementation  of  membership  policies?   If  so, 
list,  with  dates  of  membership.   What  have  you  done  to  try  to 
change  these  policies? 

I  do  not  belong,  nor  have  I  belonged,  to  such  organizations. 

3.  Is  there  a  selection  commission  in  your  jurisdiction  to 
recommend  candidates  for  nomination  to  the  federal  courts?   If 
so,  did  it  recommend  your  nomination?   Please  describe  your 
experience  in  the  entire  judicial  selection  process,  from 
beginning  to  end  (including  the  circumstances  which  led  to  your 
nomination  and  interviews  in  which  you  participated) . 

There  is  no  selection  commission  in  the  District  of  Columbia 
to  recommend  candidates  for  nomination  to  the  U.S.  Court  of 
Appeals  for  the  District  of  Columbia  Circuit. 

4 .  Has  anyone  involved  in  the  process  of  selecting  you  as  a 
judicial  nominee  discussed  with  you  any  specific  case,  legal 
issue  or  question  in  a  manner  that  could  reasonably  be 
interpreted  as  asking  how  you  would  rule  on  such  case,  issue,  or 
question?   If  so,  please  explain. 


68 


No  such  discussion  has  occurred. 

5.   Please  discuss  your  views  on  the  following  criticism 
involving  "judicial  activism": 

"The  role  of  the  Federal  judiciary  within  the  Federal 
government,  and  within  society  generally,  has  become  the  subject 
of  increasing  controversy  in  recent  years.   It  has  become  the 
target  of  both  popular  and  academic  criticism  that  alleges  that 
the  judicial  branch  has  usurped  many  of  the  prerogatives  of  other 
branches  and  levels  of  government.   Some  of  the  characteristics 
of  this  "judicial  activism"  have  been  said  to  include: 

a.  A  tendency  by  the  judiciary  toward  problem-solution 
rather  than  grievance-resolution; 

b.  A  tendency  by  the  judiciary  to  employ  the  individual 
plaintiff  as  a  vehicle  for  the  imposition  of  far- 
reaching  orders  extending  to  broad  classes  of 
individuals; 

c.  A  tendency  by  the  judiciary  to  impose  broad, 
affirmative  duties  upon  governments  and  society; 

d.  A  tendency  by  the  judiciary  toward  loosening 
jurisdictional  requirements  such  as  standing  and 
ripeness;  and 

e.  A  tendency  by  the  judiciary  to  impose  itself  upon  other 
institutions  in  the  manner  of  an  administrator  with 
continuing  oversight  responsibilities." 

The  Judicial  Branch  must  respect  the  roles  of  the  Executive 
and  Legislative  Branches.   The  principle  of  separation  of  powers 
is  fundamental  to  our  system  of  government.   Cases  and 
controversies  are  to  be  decided  by  the  courts.   Hence,  parties 
must  properly  be  before  the  court  and  the  issues  must  be  ripe  for 
decision.   The  criticism  of  "judicial  activism"  is  to  be 
distinguished,  however,  from  matters  that  are  properly  before  the 
court  where  the  appropriate  disposition  of  the  case  or 
controversy  may  have  far-reaching  consequences.   My  experience 
indicates  that  judges  are  loath  to  assume  administrative 
responsibilities  much  less  impose  broad  affirmative  duties  on 
government  and  society  that  exceed  the  requirements  of  law  in  the 
case  pending  before  the  court. 


69 


I.  BIOGRAPHICAL  INFORMATION  (PUBLIC) 
1.    Full  name  (include  any  fomer  names  used.) 

Michael  A.  Ponsor 


2.  Address:  List  current  place  of  residence  and  office 
address (es) . 

Home:   387  Bay  Road  Office:  U.S.  District  Court 

Amherst,  MA   01002  1550  Main  St.,  Rm.  512 

Springfield,  MA   01103 

3.  Date  and  place  of  birth. 

August  13,  1946.   Chicago,  Illinois. 

4.  Marital  Status  (include  maiden  neune  of  wife,  or  husband's 
naune) .  List  spouse's  occupation,  employer's  name  and  business 
address (es) . 

Divorced. 


5.  Education:  List  each  college  and  law  school  you  have  attended, 
including  dates  of  attendance,  degrees  received,  and  dates 
degrees  were  granted. 

Yale  Law  School:  1971-73,  1974-75;  J.D.,  January  1975. 

Pembroke  College,  Oxford  University,  England:  1969-71;  B.A. 
(second  class  honours),  June  1971;  M.A.,  March  1979. 

Harvard  University:  1964-67,  1968-69;  B.A.  (magna  cum  laudel . 
June  1969. 

6.  Employment  Record;  List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other 
enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 

_,    January  1984  to  present:  United  States  Magistrate  Judge, 
U.  S.  District  Court,  Springfield,  Massachusetts. 

Januarv  1988  to  present:  Professor  of  Law  (Adjunct),  Western 
New  England  College  Law  School,  Springfield,  Massachusetts. 


70 


January  1989  to  1991;  Professor  of  Law  (Adjunct) ,  Yale  Law 
School,  New  Haven,  Connecticut. 

September  1978  to  December  1983;  Partner,  Brown,  Hart  & 
Ponsor,  35  South  Pleasant  St.,  Amherst,  Massachusetts. 

September  1976  to  September  1978:  Associate,  Homans,  Hamilton 
&  Lamson,  1  Court  St.,  Boston,  Massachusetts. 

September  1975  to  September  1976;  Law  Clerk,  Hon.  Joseph  L. 
Tauro,  U.  S.  District  Court,  Post  Office  &  Courthouse,  Boston, 
MA. 

Summer  1974;   summer  clerk.  Hill  &  Barlow,  Boston,  MA 

Summers  1969  and  1971;  General  assignment  reporter, 
Minneapolis  Tribune,  Minneapolis,  MN 

July  1967  to  August  1968;  Teacber,  Kenya  Institute  of 
Administration,  Nairobi,  Kenya  (on  leave  from  Harvar'd)  . 

7.  Military  Service:  Have  you  had  any  milieory  service?  If  so, 
give  particulars,  including  dates,  branch  of  service,  rank  or 
rate,  serial  number  and  type  of  discharge  received. 

None 

8.  Honors  and  Awards ;  List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 

Rhodes  Scholarship 

Dean's  List,  all  years  at  Harvard. 

Honorary  Scholarships  for  academic  excellence,  all  years  at 

Harvard. 


9.  Bar  Associations;  List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are  or 
have  been  a  member  and  give  the  titles  and  dates  of  any 
offices  which  you  have  held  in  such  groups. 

American,  Massachusetts,  Hampshire  County  and  Boston  Bar 
Associations.  National  Council  of  United  States  Magistrate 
Judges . 


71 


10.  other  Memberships;  List  all  organizations  to  which  you  belong 
that  are  active  in  lobbying  before  public  bodies.  Please  list 
all  other  organizations  to  which  you  belong. 

I  belong  to  no  organizations  actively  lobbying  before 

public  bodies.   Other  organizations  I  belong  to  are: 

American  Field  Service; 

Association  of  American  Rhodes  Scholars; 

Oxford  Society; 

United  State  Magistrate  Judges  Association; 

The  Finnish-American  Society. 

South  Congregational  Church 

11.  Court  Admission;  List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses  if 
any  such  memberships  lapsed.  Please  explain  the  reason  for 
any  lapse  of  membership.  Give  the  same  information  for 
administrative  bodies  which  require  special  admission  to 
practice. 

United  States  Supreme  Court,  1980 

Massachusetts  Supreme  Judicial  Court,  1975 

U.  S.  Circuit  Court  of  Appeals,  First  Circuit,  1976 

U.  S.  District  Court,  District  of  Massachusetts,  1976 

12.  Published  Writings;  List  the  titles,  publishers,  and  dates  of 
books,  articles,  reports,  or  other  published  material  you  have 
written  or  edited.  Please  supply  one  copy  of  all  published 
material  not  readily  available  to  the  Committee.  Also,  please 
supply  a  copy  of  all  speeches  by  you  on  issues  involving 
constitutional  law  or  legal  policy.  If  there  were  press 
reports  about  the  speech,  and  they  are  readily  available  to 
you,  please  supply  them. 

I  am  currently  co-editor  of  an  updated  edition  of  Civil 
Litigation  in  the  First  Circuit,  which  will  be  published  in 
1994  by  Massachusetts  Continuing  Legal  Education.  I  will  be 
writing  two  sections  of  the  book:  one  on  arguing  motions  (now 
in  draft  form) ,  the  other  on  special  features  of  civil 
practice  in  the  District  of  Massachusetts.  A  copy  of  my  draft 
"Avoiding  Catastrophe  at  Oral  Argument"  is  included  in  my 

3 


72 


Appendix  as  Section  S. 

A  list  of  speeches  and  other  presentations  I  have  made  is 
appended  to  this  form  as  Attachment  1.  I  am  not  aware  of  any 
press  coverage  of  these  events.  The  presentations  were  not 
written,  and  I  currently  have  no  documents  embodying  them. 


13.   Health;   What  is  the  present  state  of  your  health?   List  the 
date  of  your  last  physical  examination. 

My  health  is  excellent.  My  last  physical  exam  was  on  8/4/93. 


14.  Judicial  Office;  State  (chronologically)  any  judicial  offices 
you  have  held,  whether  such  position  was  elected  or  appointed, 
and  a  description  of  the  jurisdiction  of  each  such  court. 

I  was  appointed  U.S.  Magistrate  Judge  for  the  United 
States  District  Court  for  the  District  of  Massachusetts 
(Western  Section)  on  January  6,  1984  and  reappointed  to 
a  second  eight-year  term  on  January  6,  1992.  The  Western 
Section  exercises  jurisdiction  over  all  federal  criminal 
and  civil  cases  in  the  four  counties  of  western  Massa- 
chusettts. 

As  the  Magistrate  Judge  in  the  Western  Section,  my 
responsibilities  include:  (1)  review  of  all  applications  for 
search,  seizure,  arrest  or  inspection  warrants  in  these 
counties;  (2)  arraignments,  initial  appearances  and  detention 
hearings  in  all  criminal  cases;  (3)  issuance  of  rulings  on 
non-dispositive  pre-trial  motions  in  all  crxf^Ppl  and  civil 
cases;  (4)  issuance  of  reports  and  recommendations  on 
dispositive  motions  in  criminal  and  civil  cases,  following 

4 


73 


conduct  of  evidentiary  hearings,  if  necessary;  (5)  jury  and 
non-jury  trials  in  criminal  misdemeanor  cases  and  in  civil 
cases,  with  the  consent  of  the  parties. 

15.  Citations;  If  you  are  or  have  been  a  judge,  provide:  (1) 
citations  for  the  ten  most  significant  opinions  you  have 
written;  (2)  a  short  summary  of  and  citations  for  all 
appellate  opinions  where  your  decisions  were  reversed  or  where 
your  judgment  was  affirmed  with  significant  criticism  of  your 
substantive  or  procedural  rulings;  emd  (3)  citations  for 
significant  opinions  on  federal  or  state  constitutional 
issues,  together  with  the  citation  to  appellate  court  rulings 
on  such  opinions.  If  amy  of  the  opinions  listed  were  not 
officially  reported,  please  provide  copies  of  the  opinions. 

(1)    Ten  Significant  Opinions. 

A.  Gunther  v.  County  of  Franklin.  C.A.  91-30108  (October  15, 
1992) .  Report  and  Recommendation  addressing  the  constitu- 
tional rights  of  inmates  at  correctional  facilities  suffering 
from  HIV-related  illnesses,  and  recommending  that  defendants' 
motion  for  summary  judgment  be  denied.  This  recommendation 
has  been  adopted  by  Sr.  Judge  Frank  H.  Freedman  on  September 
29,  1993.   See  Appendix  A. 

B.  Mattoon  v.  Pittsfield.  C.A.  88-0128-F  (July  17,  1991). 
Report  and  Recommendation  addressing  the  preemptive  impact  of 
the  Safe  Drinking  Water  Act,  42  U.S. C.  §  300f,  on  plaintiffs' 
federal  and  state  claims  against  the  City  of  Pittsfield  and 
others  for  an  outbreak  of  waterborne  giardiasis  caused  by 
beaversf in  the  city's  reservoirs,  recommending  allowance  of 
the  defendants'  motions  for  summary  judgment.  This  recommen- 
dation was  adopted  by  the  district  court  and  affirmed  in 

5 


74 


Mattoon  v.  Pittsfield.  980  F.2d  1  (1st  Cir.  1992).    See 
Appendix  B. 

C.  Wilkes  V.  Heritage  Bancorp  C.A.  90-11151-F  and  90-11285-F 
(November  21,  1990) .  Report  and  Recommendation  addressing  the 
sufficiency  of  a  complaint  against  a  bank  for  violations  of 
sections  10b  and  20  of  the  Securities  Exchange  Act  of  1934, 
concluding  that  the  allegations  failed  to  state  a  claim  under 
Fed.  R.  Civ.  P.  12(b)(6)  and,  further,  failed  to  satisfy  the 
particularity  requirements  of  Fed.  R.  Civ.  P.  9(b),  recommend- 
ing that  the  complaint  be  dismissed  without  prejudice  to  a 
motion  to  amend.  The  recommendation  was  subsequently  adopted 
by  the  district  court  in  Wilkes  v.  Heritage  Bancorp.  Inc..  767 
F.  Supp.  1166  (D.  Mass.  1991) .   See  Appendix  C. 

D.  Frazier  v.  Bailey.  C.A.  89-30098  (December  14,  1990). 
Report  and  Recommendation  addressing  the  entitlement  of 
counsellors,  social  workers  and  other  medical  personnel 
involved  in  a  child  sexual  abuse  case  to  qualified  immunity 
from  claims  brought  under  42  U.S. C.  §  1983  by  the  children's 
father,  the  purported  abuser,  alleging  violations  of  his 
constitutional  rights,  recommending  that  defendants'  motions 
for  summary  judgment  be  allowed.  This  report  and  recommenda- 
tion was  subsequently  adopted  by  the  district  court  and 
affirmed  in  Frazier  v.  Bailev.  957  F.2d  920  (1st  Cir.  1992). 
See  Appendix  D. 


75 


E.  Russell  Harrington  Cutlery.  Inc.  v.  Lamson  &  Goodnow  Mfg. 
Co. .  C.A.  No.  89-01077  (Dec.  26,  1989)  .  Memorandum  and  Order 
addressing  plaintiff's  claim  that  it  possessed  the  exclusive 
right,  under  common  law  and  statutory  trademark,  to 
manufacture  white-handled  knives  in  the  United  States  and 
Canada,  and  recommending  (with  a  bow  to  Moby  Dick,  and  the 
"whiteness  of  the  whale")  that  the  defendants'  motion  for 
summary  judgment  be  allowed,  on  the  ground  that,  generally 
speaking,  a  manufacturer  cannot  obtain  a  trademark  on  a  color. 
Since  this  was  a  consent  case  pursuant  to  Fed.  R.  Civ.  P.  73, 
this  ruling  was  the  final  order  in  the  case.  It  was  not 
appealed.   See  Appendix  E. 

F.  Colon  V.  Casco.  Inc. .  C.A.  86-0177-F  (September  15, 
1988) .  Memorandum  and  Order  awarding  damages  to  migrant 
workers  for  violations  of  the  Migrant  and  Seasonal 
Agricultural  Workers  Protection  Act,  29  U.S.C.  §  1801, 
following  a  three-day  trial  under  Fed.  R.  Civ.  P.  73.  On 
appeal,  the  district  court,  acting  as  a  court  of  appeals, 
affirmed  except  for  the  issue  of  prejudgment  interest,  which 
was  awarded  on  remand.  The  district  court  opinion  is  reported 
at  716  F.  Supp.  688  (D.  Mass.  1988) .   See  Appendix  F. 

G.  Rodriguez  y.  Springfield.  127  F.R.D.  426  (D.  Mass. 
1989) .  Memorandum  and  Order  addressing  the  difficult  issue  of 
a  civil  rights  plaintiff's  entitlement  to  disclosure  of  the 


76 


identity  of  a  confidential  informant  whose  misinformation  to 
the  police  regarding  drug  dealing  led  to  a  mistaken  search  of 
her  apartment,  balancing  "with  as  much  subtlety  as  the  court 
can  muster"  —  Id.  at  431  —  the  plaintiff's  right  to  this 
information  to  prosecute  her  claim  of  police  misconduct, 
against  law  enforcement  concerns  about  the  protection  of 
sources.   See  Appendix  G. 

H.  M.S.  Chambers  &  Son.  Inc.  v.  Tambrands.  Inc..  118  F.R.D. 
274  (D.  Mass.  1987) .  Memorandum  and  Order,  adopted  by  then 
Chief  Judge  Freedman  without  objection,  awarding  defendants 
$17,181.13  attorneys  fees  as  a  sanction  pursuant  to  Fed.  R. 
Civ.  P.  11,  against  the  plaintiff's  attorneys  for  knowingly 
filing  suit  in  an  improper  venue  and  prosecuting  the  suit 
under  the  name  of  a  plaintiff  they  knew,  or  should  have  known, 
was  not  entitled  to  relief.  At  the  time  this  was  one  of  the 
stiffest  sanctions  under  Rule  11  in  this  Circuit.  See 
Appendix  H. 

I.  Brown  V .  Ashe .  C.A.  81-280-F.  February  21,  1989. 
Memorandum  and  order  capping  the  inmate  population  at  the 
Heunpden  County  Jail  and  House  of  Correction  at  450.  This 
order  issued  in  response  to  a  visit  by  the  court  to  the 
century-old  facility  and  the  revelation  that  the  institution, 
which  had  a  rated  capacity  of  314,  housed  724  prisoners.  The 
cap  remained  in  place  until  the  fall  of  1992,  when  the  new 

8 


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jail  and  house  of  corrections  opened  in  Ludlow.  All  parties 
consented  to  trial  of  the  case  before  me  under  Fed.  R.  Civ.  P. 
73.   The  order  was  not  appealed.   See  Appendix  I. 

J.  United  States  v.  Joseph  T.  Keating.  CR.  87-167-F.  June  20, 
1988.    Report  and  Recommendation  urging  allowance  of  the 
defendant's  motion  to  dismiss  for  improper  destruction  of 
evidence,  violation  of  the  Speedy  Trial  Act  and  prosecutorial 
vindictiveness.    The  basis  of  the  recommendation  was  the 
misrepresentation  to  the  court  by  the  government  that  an  86- 
second  gap  in  a  tape  recording  of  a  conversation  between  a  DEA 
agent   and   the   defendant,   which   defendant   claimed  was 
exculpatory,  was  innocently  caused  by  excessive  distance 
between  the  transmitter  and  receiver.  In  fact,  following  this 
representation  to  the  court,  made  by  the  agent  under  oath,  an 
F.B.I,  expert  testified  that  the  gap  was  caused  by  a 
deliberate  erasure.  The  recommendation  was  adopted  by  the 
district  court  and  the  indictment  was  dismissed  with 
prejudice.   See  Appendix  J. 

(2)  Appellate  Opinions. 

A.  Sweeney  v.  Westvaco  Co.  .  926  F.  2d  29  (1st  Cir.  1991)  . 
Plaintiff  brought  a  loss  of  consortium  action  against  her 
husband's  employer  and  supervisors  alleging  negligent 
infliction  of  emotional  distress.  After  a  jury  trial  in  which 
the  plaintiff  was  awarded  substantial  damages,  the  defendant 


78 


moved  for  judgment  n.o.v. .  and  I  allowed  the  motion, 
concluding  that  the  suit  was  preempted  under  the  Labor 
Management  Relations  Act,  29  U.S.C.  §  185,  and  that  the 
defendant  had  not  waived  the  defense  by  failing  to  raise  it 
before  the  verdict.  The  First  Circuit  affirmed  my  rulings 
against  claims  of  trial-related  errors,  but  —  while 
recognizing  that  the  defendant's  argument  was  "a  strong  one," 
Id.  at  38  —  held  that  the  defendant's  failure  to  raise  the 
preemption  defense  earlier  constituted  a  waiver.  The  case  was 
remanded  with  instructions  to  reinstate  the  jury's  verdict. 

B.  Santiago  v.  Fenton.  891  F.2d  373  (1st  Cir.  1989). 
Plaintiff  brought  a  civil  rights  action  under  both  42  U.S.C. 
Section  1983  and  state  common  law.  Some  claims  and  defendants 
dropped  from  the  case  following  rulings  on  motions  for  summary 
judgment.  At  the  close  of  the  evidence  I  directed  verdicts 
for  the  remaining  defendant  on  the  state  tort  claims  and 
federal  and  state  civil  rights  claims  for  false  arrest  and 
imprisonment,  malicious  prosecution,  abuse  of  process  and 
conspiracy,  on  the  ground  that  the  uncontested  evidence 
demonstrated  that  the  defendant  had  probable  cause  to  arrest 
the  plaintiff.  The  claim  for  excessive  force  went  to  the  jury 
and  resulted  in  a  damage  award  to  the  plaintiff.  On  appeal, 
the  First  Circuit  affirmed  in  part,  but  reversed  the  grants  of 
directed  verdicts  on  the  state  tort  claims  of  false  arrest  and 
imprisonment,  malicious  prosecution  and  abuse  of  process,  and 


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the  state  and  federal  civil  rights  claims  for  illegal  arrest 
and  civil  rights  conspiracy.  The  case  was  remanded  for  a  new 
trial  on  these  claims  and  subsequently  settled. 

C.  Colon  V.  Casco.  Inc..  716  F.  Supp.  688  (D.  Mass.  1989). 
This  was  an  action  brought  under  the  Migrant  and  Seasonal 
Agricultural  Worker  Protection  Act,  29  U.S.C.  §  1801,  tried 
before  me  under  Fed.  R.  Civ.  P.  73  and  28  U.S.C.  §  636(c). 
The  parties  opted  to  pursue  their  appeal  before  the  district 
court  under  28  U.S.C.  §  636(c)(4).  My  findings  and  rulings 
were  affirmed  against  a  broad-based  appeal  by  the  defendants, 
but  I  was  reversed  on  plaintiffs'  cross  appeal  for  denial  of 
prejudgment  interest.  Id.  at  695.  The  case  was  remanded  for 
an  assessment  of  prejudgment  interest. 

D.  Librera  v.  United  States.  718  F.  Supp.  Ill  (D.  Mass. 
1989)  .  Plaintiffs  brought  a  slip-and-fall  action  against  the 
United  States  under  the  Federal  Tort  Claims  Act  after  a  fall 
at  the  Shelbume  Falls  Post  Office.  Following  a  non-jury 
trial  I  awarded  damages  in  the  amount  of  $124,151.82.  As  with 
Colon  above,  the  case  was  tried  before  me  by  consent  with  the 
appeal  to  go  to  the  district  court.  In  an  unpublished  opinion 
dated  October  24,  1988  the  district  court  affirmed 
"substantially  all"  of  my  decision,  but  remanded  for  further 
findings,  regarding  "the  respective  lieJailities  of  the  United 
States  and  Corliss  [a  private  contractor,  whose  negligence 

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arguably  contributed  to  plaintiff's  injury],  and  for  a 
reduction  in  the  award  if  appropriate."  Id.  at  112.  On 
December  8,  1988  I  issued  my  Memorandum  on  Remand  finding  that 
the  plaintiff's  injury  was  indivisible,  that  the  United  States 
was  itself  negligent,  that  this  negligence  was  a  substantial 
factor  in  causing  the  plaintiff's  injury  and  that,  as  a 
result,  the  United  States  was  jointly  and  severally  liable  for 
the  entire  damage  award.  This  decision  was  affirmed  by  the 
district  court  on  appeal  in  the  ruling  cited  above. 

The  four  cases  summarized  above  are  the  only  appellate 
opinions  where  my  decisions  were  reversed  or  significantly 
criticized. 

(3)  significant  Opinions  on  Constitutional  Issues. 

A  large  percentage  of  the  recommendations  I  have  rendered 
since  1984  have  touched  on  constitutional  issues  the  parties,  at 
least,  deemed  significant.  The  Gunther,  Frazier  and  Keating  cases 
at  Appendix  A,  D  and  J  are  examples  of  these.  Hundreds  more 
rulings  on  non-dispositive  motions,  particularly  in  criminal  cases, 
were  drafted  against  a  backdrop  of  constitutional  law.  See  e.g. 
Rodriguez  v.  Springfield.  127  F.R.D.  426  (D.  Mass.  1989)  and  United 
states  V.  Noetzel.  124  F.R.D.  518  (D.  Mass.  1989).  The  following 
are  significant  opinions  on  constitutional  issues. 


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A.  United  States  of  America  v.  Yana  II  Kim.  CR.  85-0151-F. 
October  24,  1985.  The  court  recommended  allowance  of  defendant's 
motion  to  suppress  on  the  ground  that  the  government  investigators 
had  deliberately  withheld  Miranda  warnings  in  an  effort  to 
intimidate  the  defendant  into  making  incriminating  statements.  The 
defendant  pled  guilty  while  the  government's  objections  to  this 
recommendation  were  pending.   See  Appendix  K. 

B.  United  States  of  America  v.  Single  Family  Dwelling.  C.A. 
No.  85-0246-F  (November  26,  1986).  This  memorandum  recommended  the 
dismissal  of  ten  civil  forfeiture  actions  on  the  ground  that  the 
procedure  was  unconstitutional  as  applied,  or  alternatively,  that 
the  practices  employed  by  the  government  in  effecting  the 
forfeitures  were  so  flawed  that  dismissal  was  appropriate.  The 
recommendation  was  adopted  by  the  district  court,  and  all  the 
complaints  were  dismissed.  Although  the  discussion  in  the 
memorandum  is  somewhat  anachronistic  now,  given  subsequent 
refinements  in  procedures,  at  the  time  it  offered  one  of  the  first 
constitutional  analyses  of  civil  forfeiture.   See  Appendix  L. 

C.  United  States  of  America  v.  Scibelli.  CR.  85-0399-F. 
August  13,  1987.  This  recommendation  urged  denial  of  defendant's 
broad-ranging  motion  to  suppress  electronic  surveillance  at  his 
place  of  business.  It  addressed  a  number  of  possible  grounds  for 
suppression  of  the  fruits  of  electronic  surveillance.  The 
recommendation  was  adopted  by  the  district  court  and  the  defendant 

13 


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eventually  pled  guilty.   See  Appendix  M. 

D.  Plathe  v.  Coaains.  C.A.  86-0273-F.  July  11,  1988.  This 
recommendation  offers  an  instance  in  a  civil  rights  case  alleging 
police  misconduct,  where  the  court  found  that  the  reasonableness  of 
the  force  used  did  not  raise  a  jury  question.  Defendant  was  a 
female  state  trooper  confronting  the  plaintiff,  a  much  larger  male 
who  admitted  resisting  arrest.  She  incapacitated  him  with  a  single 
blow  to  the  groin  with  her  flashlight  in  order  to  apply  handcuffs. 

Plaintiff  suffered  no  injury  beyond  the  initial  shock,  and  the 
court  found  the  force  reasonable  as  a  matter  of  law.  The 
recommendation  was  adopted  by  the  district  court  and  summary 
judgment  was  entered  for  the  defendant.   See  Appendix  N. 

E.  United  States  of  America  v.  Hadfield.  CR.  88-0254-F.  March 
8,  1989.  This  recommendation  found  that  defendants  had  made  a 
sufficient  preliminary  showing,  pursuant  to  Franks  v.  Delaware.  438 
U.S.  154  (19'78)  ,  that  false  statements  were  contained  in  the  search 
warrant  supporting  the  search  of  their  residence,  and  an 
evidentiary  hearing  was  appropriate.  The  government  objected  to 
the  recommendation  and  submitted  additional  material  to  the 
district  court  on  review  de  novo  that  persuaded  Judge  Freedman  not 
to  adopt  the  recommendation.  This  decision  was  later  affirmed  at 
918  F.  2d  987  (1st  Cir.  1987),  cert,  denied  111  S.  Ct.  2062  (1991). 
See  Appendix  O. 

14  -\ 


83 


F-  Kucefski  v.  Desv.  C.A.  89-30167-F.  October  8,  1992.  This 
memorandum  discusses  the  elements  of  a  claim  for  false  arrest  and, 
more  significantly,  at  12  et  seq. .  the  allegations  required  for  a 
claim  of  civil  rights  conspiracy  under  42  U.S.C.  section  1985.  The 
recommendation  also  discusses  the  factual  prerequisites  for  a  claim 
under  the  Massachusetts  Civil  Rights  Act.  It  recommends  that 
summary  judgment  be  granted  as  to  the  claim  for  false  arrest  and 
otherwise  denied.  The  recommendation  was  adopted  by  the  district 
court  on  October  30,  1992.   See  Appendix  P. 

G.  Smith  V.  Springfield.  C.A.  88-0165-F.  October  13,  1992. 
The  recommendation  addresses  a  claim  under  42  U.S.C.  sections  1983 
and  1985  for  civil  rights  violations  arising  from  a  "protective 
sweep"  by  federal  state  law  enforcement  officers  of  the  plaintiff's 
residence.  The  memorandum  incorporates  a  previous  report,  dated 
March  2,  1990,  addressing  the  claims  of  excessive  force  and 
rejecting  the  defendants'  claims  of  qualified  immunity.  This 
recommendation  was  adopted  by  the  district  court  on  September  24, 
1993.   See  Appendix  Q. 

H.  Pvle  V.  The  South  Hadlev  School  rnTmiii-n-g«>,  c.A.  93-30102- 
F.  June  8,  1993.  Plaintiff  high  school  students  sought  a 
temporary  restraining  order  barring  any  attempt  by  the  defendant 
School  Committee  to  prohibit  them  from  wearing  two  mildly  vulgar  T- 
shirts  in  school.  The  court  denied  the  motion,  concluding  that  the 
plaintiffs  were  unlikely  to  prove  a  First  Amendment  violation  based 

15 


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upon  the  defendants'  decision  to  limit  clothing  with  sexually 
provocative  slogans,  where  affidavits  from  the  teachers  suggested 
that  such  limitation  protected  students  and  enhanced  the  learning 
environment.  This  was  a  consent  case  under  Fed.  R.  Civ.  P.  73;  the 
denial  of  the  T.R.O.  was  not  appealable.   See  Appendix  R. 


16.  Public  Office;  State  (chronologically)  any  public  offices  you 
have  held,  other  than  judicial  offices,  including  the  terms  of 
service  and  whether  such  positions  were  elected  or  appointed. 
State  (chronologically)  any  unsuccessful  candidacies  for 
elective  public  office. 

In   1979   I   was   appointed   the   Monitor   to   oversee 

implementation  of  the  consent  decree  entered  in  Brewster  v. 

Dukakis .  C.A.  76-4423-F.   I  served  until  the  end  of  1983. 


17.   Legal  Career; 

a.    Describe   chronologically   your   law   practice   and 
experience  after  graduation  from  law  school  including; 

1.  whether  you  served  as  clerk  to  a  judge  and  if  so, 
the  name  of  the  judge,  the  court,  and  the  dates  of 
the  period  you  were  a  clerk; 

2.  whether  you  practiced  alone,  and  if  so,  the 
addresses  and  dates; 

3.  the  dates,  name  and  addresses  of  law  fins  or 
offices,  companies  or  governmental  agencies  with 
which  you  have  been  connected,  and  the  nature  of 
your  connection  with  each. 

I  clerked  for  U.S.  District  Judge  Joseph  L.  Tauro  in 
Boston,  1975-76. 

Following  my  clerkship,  I  worked  as  an  associate  at  a 
firm  then  named  Homans,  Hamilton  and  Lamson,  1976-78,  located 
at  One  Court  St.,  Boston.    From  1978  until  1983  I  was  a 

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partner  at  Brown,  Hart  and  Ponsor,  37  S.  Pleasant  St., 
Amherst,  Massachusetts.  In  January  of  1984  I  was  appointed  to 
my  present  position.   I  have  never  practiced  alone. 


b.  1.  What  has  been  the  general  character  of  your  law 
practice,  dividing  it  into  periods  with  dates  if  its 
character  has  changed  over  the  years? 

2.   Describe  your  typical  former  clients,  and  mention 
the  areas,  if  any,  in  which  you  have  specialized. 

From  1976  to  1978  criminal  defense  work  predominated, 
through  my  association  with  William  P.  Homans,  Jr.   As  a 
result,  I  assisted  in  felony  trials  in  state  and  federal 
court,  including  cases  involving  charges  of  arson,  fraud, 
rape,   armed   robbery   and   assault.     I   exercised   sole 
responsibility  for  a  number  of  state  district  court  trials, 
including  assault  and  battery  on  a  police  officer,  breaking 
and  entering,  possession  of  stolen  goods,  larceny  and  driving 
under  the  influence.   My  clientele  was  mainly  individuals  of 
very  modest  means  or,  by  appointment,   indigent  persons. 
Another  element  of  my  practice  was  plaintiffs'  civil  rights 
litigation.    These  clients  included  a  group  of  students 
asserting  claims  against  Boston  University  for  suppressing 
their  newspaper,  and  union  organizers  contesting  unfair  labor 
practices  and  intentional  infliction  of  emotional  distress. 

Following  the  move  to  Amherst  in  1978  my  practice 
gradually  became  more  civil,  though  I  still  occasionally 

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represented  clients  charged  in  criminal  cases  in  federal 
and  state  court.  Plaintiffs'  personal  injury  litigation 
began  to  absorb  more  of  my  time,  and  I  developed  a  brisk 
domestic  practice.  Mine  was  a  rewarding  small-town 
practice,  and  my  typical  clients  were  individuals  charged 
with  crime,  negligently  injured  or  in  the  grip  of 
matrimonial  difficulties.  Other  clients  were  local 
businesses  as  well  as  Hampshire  College,  which  I 
represented  in  disputes  with  its  faculty. 

Beginning  in  1979,  at  the  suggestion  of  now.  Superior 
Court  Judge  Catherine  White,  who  was  then  representing  the 
Commonwealth,  and  with  the  approval  of  plaintiff's  counsel,  I 
was  appointed  by  the  U.S.  District  Court  the  Monitor  for  the 
Brewster  v.  Dukakis  consent  degree.  While  the  decree  was  very 
elaborate,  it  essentially  called  for  a  gradual  reduction  in 
the  patient  population  of  the  Northampton  State  Hospital  and 
the  transfer  of  patients  into  smaller,  community-based 
treatment  facilities.  My  responsibilities  included  overseeing 
implementation  of  the  decree  to  insure  its  provisions  were 
carried  out,  particularly  those  aimed  at  patient  safety  and 
care;  reporting  to  the  court  on  the  progress  of 
implementation;  resolving  disputes  between  counsel  for  the 
plaintiff  patients  and  the  Commonwealth,  and  advising  the 
court  when  unresolved  disputes  broke  into  active  litigation. 
After  my  appointment  this  work  occupied  a  third  to  a  half  of 
my  professional  life. 

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since  January  of  1984,  I  have  performed  my  duties  as 
a  Magistrate  Judge. 

c.  1.  Did  you  appear  in  court  frequently,  occasionally,  or 
not  at  all?  If  the  frequency  of  your  appearances  in 
court  varied,  describe  each  such  variance,  giving 
dates. 

During  1976-78  in  Boston,  I  typically  appeared  in  court 

one  or  more  times  per  week  for  hearings  or  trials.   From  1978 

to  1984  the  frequency  of  my  appearance  varied  but  on  the 

average  I  was  in  court  two  or  three  times  a  month  for  either 

a  trial,  conference  or  hearing. 

2.   What  percentage  of  these  appearance  was  in; 

(a)  federal  courts; 

(b)  state  courts  of  record; 

(c)  other  courts. 

Approximately  eighty  percent  of  these  appearances  were  in 
state  courts  of  record,  the  balance  in   federal  court. 

3.  What  percentage  of  your  litigation  was: 

(a)  civil; 

(b)  criminal. 

From  1976-78,  when  I  practiced  in  Boston,  eighty  percent 
of  my  litigation  was  criminal;  after  my  move  to  Amherst,  about 
eighty  percent  of  my  litigation  was  civil. 

4.  State  the  number  of  cases  in  courts  of  record  you 

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tried  to  verdict  or  judgment  (rather  than  settled) / 
indicating  whether  you  were  sole  counsel,  chief 
counsel,  or  associate  counsel. 

My  best  estimate  is  that  during  1976-78  while  in  Boston 

I  tried  approximately  six  major  felony  cases  to  judgment 

either  in  federal  court  or  in  state  Superior  Court,  always  as 

associate  counsel.   During  the  s£une  period,  I  tried  as  sole 

counsel  approximately  five  misdemeanor  cases  to  verdict  in 

various  state  district  courts.  Following  my  move  to  Amherst, 

I  tried  two  major  felony  cases  to  verdict  in  federal  court, 

one  as  associate  counsel,  and  one  —  a  three-week  trial  —  as 

sole  counsel.   I  tried  a  felony  case  to  verdict  in  Superior 

Court  as  sole  counsel,  a  misdemeanor  case  to  verdict  in 

Hampshire  district  court  as  sole  counsel  and  at  least  two 

civil  cases  to  verdict  in  Hcunpshire  district  court  as  sole 

counsel. 

5.   What  percentage  of  these  trials  was: 

(a)  jury; 

(b)  non-jury. 

In  cases  going  to  verdict  approximately  sixty  percent 
have  been  jury  trials,  the  balance  non-jury. 


18.  Litigation;  Describe  the  ten  most  significant  litigated 
natters  which  you  personally  handled.  Give  the  citations,  if 
the  cases  were  reported,  and  the  docket  number  and  date  if 
unreported.  Give  a  capsule  summary  of  the  substance  of  each 
case.  Identify  the  party  or  parties  whom  you  represented; 
describe  in  detail  the  nature  of  your  participation  in  the 
litigation  and  the  final  disposition  of  the  case.  Also  state 
as  to  each  case: 

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(a)  the  date  of  representation; 


(b)  the  name  of  the  court  and  the  name  of  the  judge  or  judges 
before  whom  the  case  was  litigated;  and 

(c)  the  individual  name,  addresses  and  telephone  numbers  of 
co-counsel  and  of  principal  counsel  for  each  of  the  other 
parties. 


It  is  difficult  to  address  this  question  at  the  level  of 
detail  requested,  because  it  seeks  information  from  the  time 
of  my  law  practice,  ten  or  more  years  ago.  The  following  is 
my  best  effort,  organized  chronologically. 

A.  Commonwealth  v.  Edwin  Gumbs.  Docket  number  unknown. 
Along  with  William  P.  Homans,  Jr.  (now  of  215  First  Street, 
Cambridge,  MA  02142),  I  represented  the  defendant  on  a  charge 
of  arson  before  a  jury  in  the  Suffolk  Superior  Court  in 
roughly  1977.  I  do  not  recall  the  judge,  but  the  prosecutor 
was  Sandra  L.  Hamlin,  now  a  Superior  Court  judge.  New  Court 
House,  Pemberton  Square  Boston,  MA  02108.  The  trial  resulted 
in  an  acquittal.  I  assisted  throughout  the  preparation  and 
trial  of  the  case  but  did  not  conduct  direct  or  cross- 
examination. 

B.  Commonwealth  v.  Richard  Liebman.  Docket  number 
unknown.  Again,  along  with  Attorney  Homans  I  represented  the 
defendant,  an  attorney  charged  with  masterminding  a  robbery. 
The  case  was  tried  to  a  jury  in  Middlesex  Superior  Court 
before  Judge  Alan  J,  Dimond  during  the  winter  of  1977-78.  The 

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prosecutor  was  John  K.  Markey,  now  of  One  Financial  Center, 
Boston,  617-542-6000.  The  trial  resulted  in  a  conviction, 
later  reversed  on  appeal.  Commonwealth  v.  Liebman.  388  Mass. 
483,  446  N.E.2d  714  (1983).  I  assisted  throughout  the 
preparation  and  trial  of  the  case  but,  as  in  the  Gumbs  case, 
did  not  actively  participate  at  the  trial  itself. 

C.  United  States  v.  Curt  Beck.  Crim.  No.  78-327-F.  My 
client  was  charged  under  a  federal  indictment  with 
participating,  along  with  others  under  the  direction  of 
swindler  and  escaped  convict  Alan  Herbert  Abrahams,  in  a 
fraudulent  investment  scheme.  I  was  sole  counsel  for  Beck  in 
the  case,  which  was  tried  to  a  jury  in  the  fall  or  early 
winter  of  1978  before  U.S.  District  Court  Judge  Frank  H. 
Freedman  in  Springfield.  The  defendant  pled  guilty  after  14 
days  of  trial,  subsequently  shot  himself  —  fortunately  not 
fatally  —  and  eventually  received  a  term  of  probation  with 
substantial  community  service.  His  co-defendants  all  went  on 
to  be  convicted.  The  prosecutor  was  then  Assistant  U.S. 
Attorney  Michael  A.  Collora,  now  at  400  Atlantic  Avenue, 
Boston,  (617)  357-9202.  Pre-trial  proceedings  were  extensive. 
See  United  States  v.  Abrahams.  466  F.  Supp.  552  (D.  Mass. 
1978) .  Counsel  for  co-defendants  included  Andrew  H.  Good,  now 
of  89  Broad  St.,  Boston,  617-542-6663;  Anthony  M.  Cardinale, 
One  Commercial  Wharf,  Boston,  617-523-6163,  and  Robert  F.  Peck 
Jr.,  265  Essex,  Salem,  508-744-8180. 

22 


91 


D.  United  State  v.  Daniel  Meehan.  Docket  number  unknown. 
My  client,  a  Pittsfield  banker,  was  charged  under  a  federal 
indictment  with  extorting  money  from  loan  applicants.  The 
case  was  tried  to  a  jury  before  U.S.  District  Court  Judge 
Frank  H.  Freedman  in  Springfield,  Massachusetts,  in 
approximately  1980.  I  assisted  in  the  preparation  of  the  case 
and  handled  some  cross  examination  at  trial,  though  the  lion's 
share  of  the  work  at  the  trial  itself  was  performed  by  William 
P.  Homans,  Jr.  The  prosecutor  was  Assistant  U.S.  Attorney 
George  F.  Kelly,  now  at  1500  Main  St.,  Box  15389,  Springfield, 
Mass.  01115,  (413)  781-4700.  The  trial  resulted  in  a 
conviction. 

E.  Commonwealth  v.  Justin  Gordon.  Docket  numbei'  unknown. 
My  client,  a  University  of  Massachusetts  undergraduate,  was 
charged  with  assault  with  intent  to  commit  rape.  The  case  was 
tried  to  a  jury  in  the  Hampshire  Superior  Court  before  Judge 
John  F.  Moriarty  in  the  fall  of  1980.  I  was  sole  counsel. 
The  prosecutor  in  the  early  stages  of  the  case  was  Edward  F. 
Berlin,  later  my  law  partner  and  now  an  assistant  attorney 
general  heading  the  western  Massachusetts  office  at  4  36  Dwight 
St.,  Springfield,  Mass.,  (413)  784-1240.  At  trial  the 
assistant  district  attorney  was  John  Landes,  who  has  moved 
from  the  area.  The  result  of  the  trial  was  a  conviction, 
vacated  by  Judge  Moriarty  as  against  the  weight  of  the 

23 


92 


evidence.   Prior  to  a  new  trial  my  client  was  placed  on 
unsupervised  probation. 

F.  B.  U.  Exposure  v.  John  Silber.  Docket  number  unknown. 
I  represented  a  group  of  Boston  University  students  who 
published  an  undergraduate  newspaper  called  the  B.U.  Exposure, 
after  their  funding  was  cut  off  when  they  published  an  article 
embarrassing  to  the  B.U.  administration.  The  complaint  was 
filed,  I  believe,  in  the  Middlesex  Superior  Court  and  sought 
a  preliminary  injunction  mandating  the  release  of  the  funds 
for  the  paper.  Counsel  for  Boston  University  was  James  N. 
Esdaile,  Jr.,  now  at  75  Federal  St.,  Boston,  02110,  (617)  482- 
0333.  A  lengthy  preliminary  injunction  hearing  occurred  in 
1978  before  Superior  Court  Judge  Dimond,  with  testimony 
lasting  almost  an  entire  day,  and  resulting  in  denial  of  the 
motion  for  preliminary  relief.  Upon  my  move  to  Amherst,  the 
case  was  taken  over  by  the  Massachusetts  Civil  Liberties 
Union. 

G.  Frado  V.  Murphy.  Docket  number  unknown.  My  client 
was  sued  for  overcharging  the  plaintiff  for  the  repair  and 
refurbishing  of  his  vintage  Volvo  two-seater.  The  case  was 
tried,  jury-waived,  over  a  number  of  days  before  Judge 
Alvertus  Morse,  in  the  Northampton  District  Court  in  1981  or 
1982.  Various  experts  were  presented  on  both  sides  regarding 
the  value  of  the  services  performed  by  my  client  for  the 

24 


93 


plaintiff.  Opposing  counsel  was  Edward  D.  Etheridge,  now  at 
64  Gothic  St.,  Northampton,  MA  01060,  (413)  584-0368.  The 
result  was  a  verdict  for  the  plaintiff. 

H.  Commonwealth  v.  Shanahan.  Docket  number  unknown.  I 
represented  an  undergraduate  charged  with  assault  and  battery 
on  a  police  officer  at  the  University  of  Massachusetts.  The 
trial  took  place  in  1981  or  1982,  non-jury,  in  the  Northampton 
District  Court  before  Judge  Kramer.  The  assistant  district 
attorney  was  W.  Michael  Goggins,  now  at  One  Court  Square, 
Northampton,  MA  01060,  (413)  586-9225.  The  result  was  an 
acquittal. 

I.  Cave  V.  Cave.  Docket  number  unknown.  I  represented 
an  Episcopal  minister  through  a  particularly  tangled  domestic 
proceeding  in  an  attempt  to  get  custody  of  his  four-year-old 
son,  Daniel,  who  was  taken  out  of  the  jurisdiction  by  his 
mother.  After  a  hearing  in  1982  or  1983  before  Judge  Sean  M. 
Dunphy  of  the  Hampshire  Probate  court,  the  court  issued  an 
order  granting  partial  custody  to  my  client.  The  order  was 
taken  to  the  Appeals  Court  where  Judge  Charlotte  A.  Perretta 
reversed.  Opposing  counsel  was  Jonathan  Souweine,  now  at  39 
Main  St.,  Northampton,  MA  01060,  (413)  584-7331. 

J.  Brewster  v.  Dukakis.  C.A.  76-4423-F.  From  1978 
through  1983  I  was  the  Monitor  appointed  by  the  U.  S.  District 

25 


94 


Court  to  oversee  implementation  of  a  consent  degree  mandating 
^he  gradual  reduction  of  the  patient  census  at  Northampton 
State  Hospital  through  transfers  to  smaller,  community-based 
treatment  facilities.  In  addition  to  reporting  on  the 
progress  of  implementation,  I  was  vigorously  involved  in 
mediating  recurrent  disputes  among  the  parties  during  a  very 
difficult  period  of  transition,  and  working  with  the  court 
when  litigation  erupted  over  unresolved  issues.  Counsel  for 
the  defendant  Department  of  Mental  Health  was  Richard  Ames  now 
of  80  Boylston  St.,  Boston,  MA  02116,  (617)  482-5200  in 
coordination  with  a  series  of  assistant  attorneys  general,  the 
last  being  William  L.  Pardee,  One  Ashburton  Place,  Boston,  MA 
02108,  (617)  727-1014.  Counsel  for  the  plaintiffs  were  Steven 
J.  Schwartz  and  Robert  D.  Fleischner,  both  of  the  Center  for 
Public  Representation,  22  Green  St.,  Northampton,  MA  01060, 
(413)  586-6024.  Upon  my  appointment  as  Magistrate  in  1984  my 
duties  were  passed  on  to  a  new  Monitor. 


19.  Legal  Activities;  Describe  the  most  significant  legal 
activities  you  have  pursued,  including  significant  litigation 
which  did  not  progress  to  trial  or  legal  natters  that  did  not 
involve  litigarion.  Describe  the  nature  of  your  participation 
in  this  question,  please  omit  any  information  protected  by  the 
attorney-client  privilege  (unless  the  privilege  has  been 
waived.) 


26 


95 

Most  Significant  Legal  Activities.  Chronologically; 

A.  The  Legal  Rights  of  the  Mentally  111. 

During  my  second  year  in  law  school  I  coordinated  the 
efforts  of  approximately  six  other  law  students  in  delivering 
a  wide  range  of  legal  services  to  patients  at  Connecticut 
Valley  Hospital.  In  1976,  Judge  Tauro's  view  of  the  Monson 
State  School  permitted  me  to  witness  firsthand  the  substandard 
conditions  then  existing  at  that  institution.  Still  later, 
while  in  private  practice,  I  made  numerous  visits  to 
Northampton  State  Hospital  and  to  dozens  of  small  treatment 
facilities  for  the  mentally  ill  throughout  western 
Massachusetts  in  my  role  as  Monitor  for  the  Brewster  consent 
decree.  These  contacts  made  me,  I  believe,  more  alert  to  the 
vulnerability  of  under-served  segments  of  our  population,  and 
to  the  challenges  of  protecting  the  rights  of  groups  like  the 
mentally  ill. 

B.  Teaching  the  Law 

It  is  a  proper  part  of  the  "legal  activity"  of  a  judge  to 
teach  the  law.  Five  semesters  at  Western  New  England  College 
Law  School  and  two  semesters  at  Yale  Law  School  have  given  me 
the  chance  not  only  to  share  my  experience  but  to  enjoy  the 
"recharging"  that  accompanies  contact  with  students.  Less 
extended  teaching  opportunities,  such  as  work  in  continuing 
legal  education,  at  Harvard's  Trial  Advocacy  Workshop  and  at 

27 


96 


the  Attorney  General's  Advocacy  Workshop  in  Washington  D.C., 
have  generated  the  scune  benefits.  As  one  of  only  two  western 
Massachusetts  members  of  the  state  Advisory  Committee  for 
implementation  of  the  Civil  Justice  Reform  Act  a  special 
responsibility  to  the  bar  here  has  fallen  on  me  to  participate 
in  workshops  presenting  the  particulars  of  this  important 
evolution  of  federal  practice.  Finally,  it  is  especially 
gratifying  to  be  frequently  selected  as  a  trainer  for  my 
fellow  Magistrate  Judges.  In  the  past  two  years  alone,  I  have 
participated  in  programs  on  attorney/client  privilege,  summary 
judgment,  settlement,  zmd  discovery  disputes  at  five  separate 
seminars  in  various  parts  of  the  country  for  Magistrate 
Judges . 

C.  Tenure  as  a  Magistrate  Judge 

In  January  of  1984  at  the  time  of  my  appointment  as  the 
first  Magistrate  Judge  in  Springfield,  the  Western  Section  had 
836  pending  civil  cases.  By  the  end  of  December  1992,  the 
combined  civil  caseload  for  Senior  Judge  Frank  H.  Freedman  and 
me  was  341.  While  of  course  many  factors  contributed  to  this 
reduction,  it  has  been  a  privilege  to  add  to  the  court's 
resources  and  strengthen  its  eQiility  to  respond  to  the  demands 
placed  on  it. 

The  Magistrate  Judge  plays  a  unique  role  in  this  part  of 
the  state,  in  some  ways  similar  to  that  of  a  district  court 
judge.  Counsel  have  been  much  more  likely  here  to  consent  to 

28 


97 


trial  of  civil  cases  before  the  Magistrate  Judge  under  Fed.  R. 
Civ.  P.  73.  As  a  result  civil  jury  and  non-jury  trials  make 
up  a  large  share  of  my  work.  In  1991  and  1992  I  disposed  of 
more  civil  cases  by  consent  than  all  the  other  Magistrate 
Judges  in  Massachusetts  combined.  On  the  criminal  side,  no 
other  Magistrate  Judge  is  given  responsibility  as  a  matter  of 
course  to  conduct  evidentiary  hearings  on  motions  to  suppress. 
Since  1984  over  700  written  recommendations  on  dispositive 
motions,  and  literally  thousands  of  rulings  on  non-dispositive 
motions  in  both  civil  and  criminal  cases,  have  issued  over  my 
signature. 


29 


98 


II.   FINANCIAL  DATA  AMP  COHFLICT  OF  INTEREST  (PUBLIC) 


1.  List  sources,  amounts  and  dates  of  all  anticipated  receipts 
fron  deferred  income  arrangements,  stock,  options,  uncompleted 
contracts  and  other  future  benefits  which  you  expect  to  derive 
from  previous  business  relationships,  professional  services, 
firm  memberships,  former  e^loyers,  clients,  or  customers. 
Please  describe  the  arrangements  you  have  made  to  be 
compensated  in  the  future  for  any  fintuicial  or  business 
interest. 

None,  except  that  I  have  the  option  in  the  future, 
of  taking  partial  reimbursement  of  my  Federal  Employee 
Retirement  System  contributions  in  lieu  of  an  annuity. 

2.  Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in 
determining  these  areas  of  concern.  Identify  the  categories 
of  litigation  and  financial  arrangements  that  are  likely  to 
present  potential  conflicts  of  interest  during  your  initial 
service  in  the  position  to  which  you  have  been  nominated. 

No  categories  of  litigation  or  financial  arrangements  are 

likely  to  present  potential  conflicts  of  interest.   Since  my 

appointment  as  Magistrate  Judge  in  1984  I  have  on  a  few 

occasions   confronted   situations   where   a   conflict,   or 

appearance  of  conflict,  has  arisen.  My  practice  is  to  put  the 

relevant  facts  on  the  record  and  hear  from  counsel.  In  nearly 

ten  years,  following  the  Code  of  Judicial  Conduct,  I  have  felt 

it  necessary  to  recuse  myself  ed>out  four  or  five  times. 


3.  Do  you  have  any  plans,  commitments,  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during  your 
service  with  the  court?   If  so,  explain. 

I  will  probably  continue  to  teach  one  semester  a  year, 

one  evening  a  week,  with  the  permission  of  the  Chief  Judge  of 

the  First  Circuit.  Occasional,  uncompensated  continuing  legal 


30 


99 


education  will  also  almost  certainly  remain  a  part  of  my 
professional  life.  I  have  no  other  plans  for  outside 
employment. 

4.  List  sources  and  amount  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest,  gifts,  rents,  royalties,  patents,  honoraria,  and 
other  items  exceeding  $500  or  more.  (If  you  prefer  to  do  so, 
copies  of  the  financial  disclosure  report,  required  by  the 
Ethics  in  Government  Act  of  1978,  may  be  substituted  here. 

A  copy  of  my  financial  disclosure  report,  dated 
November  22,  1993,  is  appended  as  Attachment  2. 

5.  Please  complete  the  attached  financial  net  worth  statement  in 
detail  (Add  schedules  as  called  for) . 

Appended  as  Attachment  3 . 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political 
campaign?  If  so,  please  identify  the  particulars  of  the 
campaign,  including  the  candidate,  date  of  the  campaign,  your 
title  and  responsibilities. 

I  have  never  held  a  position  or  played  a  role  in  a 
political  campaign. 


31 


100 


FINANCIAL  DISCLOSURE  REPORT     ?-H.^H-Hr«"- 

(5    U.3.C.A.    App.    6,    SS)01-1U) 


1.   Person  Raportlng   (l*«c  ntaa,    tizmz,   mlddi*  Initial) 

PONSOR,    Michael    A. 

2.    CoazT  or  Or^anlzdCloa 

U.S.    District   Court 
Springfield,    MA 

3.   Oaca   oC  Raporc 

11-22-93 

4.   T1U.O      (Article  III  JMgam  Indicate  active  or 

■anlor  itatus;  Haglatrate  Judgea  Indicate 
fvai-  or  part-tlae) 

U.S.    Magistrate   Judge 
(full-time) 

S.    Rttporc  Typa   (cteck  appropriate   type] 

^    BTonlnacloa,   Data        11~19"~93 

IftltlAl       Annual        Pinal 

6.    Raporting   Period 

through 
11-22-93 

7.    caaabmcm  or  OCClca  Addrsas 

1550   Main    Street,    Room    512 
Springfield,    MA        01103 

e.    On   Uia  baala  of   xha  Inforaatlon   contained   in   rnia  Raport,    IC 
In,    In  ay  opinion,   in  coopllonca  vlcn  appllcania  lawa  and 
r«9ulaCioaa 

Kavlavinq  Offflcttr  Slvnatura 

IMPORTANT   NOTES:     The   insnucxions     acamtpanying    this  form  must  be  followed.    Complete  all  parts, 
cbecJdjig  the  NONT  box  for  each  section  where  you  have  no  reportable  information.   Si^   on  Inst  page. 

I.     POSITIONS.     (Reponlng  individual  only,  sec  pp.  7-8  of  Instruaions.) 

POSITION  NAME  OF  ORGANIZATION/ENTTTY 

NONll       (No  reportable  poaltlona) 

Professor  of  Law  (ad-up.ct) 


Western  New  England  Collece  Law  School, 


(1/93-5/93) 


Snrincfield,  M.A 


1.     AGREEME.NTS.     (Reponing  individual  only;  see  p.  S-9  of  instructions.) 
PATH  P.ARTIHS  A-VP  THR.MS 


NONH       (No  raportablo  jcroafflenta) 


II.     NON-INVE5T,M5.M  I    INCOME.     (Rcponing  indi\ida3!  and  sccusc;  see  pp.  9-i:  of  Instrjaions.) 

pat;  SOt-'RCS  .AVP  TYPE  CROSS  fNCOME 

iKonorana  only*  ij.ours.  coi  spoiiic's) 


I  I        NONX       (N3  re?crtJ3io  r.c--ln-/e9l=on;  lr.cc=e) 

Salar.-  as  Prcfssscr  of  La.v  (ad-,;.-.ct)  a- 


.\este: 


';ev   Zr.-\=i-z  Collera    Lav  School 


s  :,ooo. :.: 


101 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


Nasw  of  ParsoD  Reporxlng 

Michael   A.    Ponsor 


Dara  of   Bapoz-C 

11-22-93 


IV.    REIMBURSEMENTS  and  GIFTS  -  transportation,  lodging,  food,  entertainment. 

(Includes  those  to  spouse  and  dependent  children;  use  the  parentheticals  "(S)"  and  '(DC)'  to  indicate  reportable 
reimbursements  and  gifts  received  by  spouse  and  dependent  children,  respectively.    See  pp.13-15  of  Instmctions.) 

SOURCE  DESCRIPTION 

X    I       NONE       {No  auch  Teporzabla  raimfiaraamonta  or  glrta) 


V.      OTHER   GIFTS,      (includes  those  to  spouse  and  dependent  children;  use  the  parentheticals  '(S)'  and  '(DC)'  to 

'  d(    -    J---  -"-'J  _■_-._.   i^__  __  .p  ...  -*  T^_. 


Q 


indicate  other  gifts  received  by  spouse  and  dependent  children,  respectively.  See  pp.15-16  of  Instructions.) 
SOLTtCE  DESCRIPTION  VALUE 

NONE       (Ko  auca  reportable  glfta) 

s 

$ 

.   $ 

$ 


VI.      LIABILITIES,      (includes  those  of  spouse  and  dependent  children;  indicate  where  applicable,  person  responsible 
for  liabilitv  bv  usin;;  the  parenthetical  "(S)"  for  separate  liabilitv  of  spouse,  "(J)"  for  Joint  liability  of  reporting 
indi>iduarana  spouse,  and  '(DC)"  for  liabilit>-  of  a  dependent  child.    See  pp.l6-I8  oflnstructions.) 

CREDITOR  DESCRIPTION  VALUE    CODE' 

NONE        (No  reportable   llabllltleel 

Fleet    Bank  Mortgage    on    25    Prospect    Ave.Tue,  L 


Greenfield,    Ma. 


J  •  r.5.:co  or  loss  K  •  515.001  to  sso.ooo  L  -  s:=,coi  to  sijo.ooo       n  -  sioo.ooi  to  s25o,oco 

.1  -  S--3-C01  to  5500,000   0  -  5500,001  to  S1,000,OC:   ?  "  -ere  t.lan  SI, COO, 000 


102 


Attachment  3 


FINANCIAL  STATEMENT 
NET  WORTH 


Provide  a  complete,  current  financial  net  worth  statement  which  itemizes  in  detail  all  assets  (including  t 
accounts.  r«al  estate,  socurities.  trusts,  investments,  and  other  financial  holdings)  all  liabilities  (including  de 
mongages.  loans,  and  other  financial  obligations)  of  yourself,  your  spouse,  and  other  Immediate  member 
your  household.  - 


ASSETS 

r                                   UABILmE£ 

lit  ij.  oao 

NoTti  piyablt  ts  b*nk> — Mcurvd 

Noto  pcyibU  to  bank>— unMcurvd 

Noln  ptyaN*  to  raUUva 

Notn  p<)nbl«  to  ethtn 

Accounti  *nd  bi'lli  due 

Unpaid  Incom*  ux 

Othtr  unpaid  (ai  and  Innmt 

Raal  ntaia  mortsign  payable — add 
•cAedule 

CunrI  mortsagn  and  othar  Hans 
payT&la 

Othar  datti — llamlje: 

— 

U.S.  Cov»mm«nt  i»ajnd«— add  ■ 

— 

^ 

Usttd  Mcuhtifrw- «dd  sch»dul* 

— 

..^ 

Unilfitd  t^ufilin — tdd  %et\9duit 

— 

.. 

^^^ 

1 

Acfsuna  and  notn  rvcaivabU: 

— 

— 

^«_-  ^_ 

Du«  from  T9\»t\vn  and  (h*nds 

- 

1 

""■ 

^'fi.flO^ 

I           

Rfii  actJti  e«m*d — add  (chvduft 
Rcir  nut«  mortfsffu  r»c«lvtbl« 

320,004 

1 

„.^, 

1 

1 

«fo,oao 

1 

Airtoi  jn<J  othfr  p^rwnal  property 

^.ooa 

Citf>  value — lif*  (niunnct 

^^ 

Thtiim- PufJh  Ufu^ 

/;,od6 

1 

Otn«f  •i»«t>— rtimlic: 

^ITTO     LoAKi 

iliaao 

1 
1 

M-<r.TKeiPT-PoAjrj 

Total  lUblhtid 
NatiMinn 

Total  liablim«  and  n«  worth 

1 

1 

i 
-  1 

Z4<7,0dO        1 

1 

rail  Odd 

Tcui  itA^ri 

*3le.o« 

1 

l23A,^£a 

CCNTINCENT  UABILITIES             ( 

CENEKAL  INFORMATION 

Aj  •floorwr.  com»««r  of  eu»r»nior 

1 

A/a  any  aiMO  pladtodJ  (Ada  acnad- 
uia.) 

An  yrsu  dalandam  In  any  aurtt  or 
Ifjai  anonir' 

Hava  )Ou  awr  takan  bananipicy?           i 

1 

txssi  C:jimi 

1 

Prtr»iiior.  (or  Trterir  Jncc.TH  T«i 

1 

1           ( 

Cntr  lp-ec:il  a«Bt 

1 

1           j 

1 

- 

1 

1 

1 

,- 

♦SCHEDULE  FOR  REAL  ESTATE: 

387  Bay  Rd.,  Amherst,  residence:  $290,000 

25  Prospect  St.,  Greenfield,  i  owner:  $30,000  (total  value:  $120,000) 

♦SCHEDULE  FOR  MORTGAGES: 

387  Bay  Rd. ,  $222,000 

25  Prospect  St.,  $20,000  (total  $80,000) 


103 


FINANCIAL  DISCLOSURE  REPORT  (confd) 


HaB0  of  Porsoa  RaporUng 

Michael   A.    Ponsor 


Data  o£  Raporc 

11-22-93 


VII.    INVESTMENTS  and  TRUSTS  -  income,  value,  transactions,    (includes  those  of  spouse 

and  dependent  children;  see  pp.  18-27  of  Instructioiis.) 


(luciudlng  crusc  assets} 

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104 


III.  GEKERAL  (PDBLIC) 


1.  An  ethical  consideration  under  Canon  2  of  the  Americim  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances  and 
the  amount  of  time  devoted  to  each. 


Volunteer  work  has  been  a  continuous  thread  in  my  life, 
starting  well  before  my  law  degree.  It  seems  awkward  to 
characterize  this  work  as  "serving  the  disadvantaged,"  since 
I  have  myself  received  so  much  from  doing  it. 

As  an  undergraduate  I  volunteered  during  my  freshman  and 
sophomore  years  as  a  tutor  for  inner-city  high  school 
students.  After  my  junior  year,  I  spent  thirteen  months  at 
the  Kenya  Institute  of  Administration  at  Kabete,  Kenya, 
outside  Nairobi,  teaching  English  (the  language  of  government) 
to  Kenyan  administrators-in-training,  as  part  of  a  program 
sponsored  by  Harvard's  Phillips  Brooks  House.  After  hours,  my 
time  was  spent  teaching  remedial  English  to  adults,  and 
English  enrichment  to  school  children,  at  a  small  village  near 
the  Institute. 

At  Oxford  a  Labour  Club  gave  me  the  chance  to  tutor  low- 
income  Indian  immigrant  children  in  English  several  hours  a 
week  in  the  neighborhoods  outside  the  center  of  town. 

During  my  first  year  in  law  school  I  joined  Yale's  Legal 
Services  Organization,  a  forensic  program  offering  legal 
services  to  various  under-served  populations.  My  own  work  was 

32 


105 


in  providing  legal  services  for  institutionalized  mentally  ill 
at  Connecticut  Valley  Hospital  in  Middletovm,  Connecticut. 
This  project  occupied  the  summer  after  my  first  year.  I  was 
responsible  for  coordinating  the  work  of  six  law  students  on 
the  project  during  my  second  year,  when  I  beceune  a  member  of 
the  board  of  the  Legal  Services  Organization. 

During  my  third  year  the  public  defenders'  office  in  New 
Haven  gave  me  the  opportunity  to  assist  in  the  representation 
of  indigent  and  largely  minority  persons  charged  with  crimes, 
including  the  conduct  of  non-jury  trials  by  leave  of  court. 

My  practice  with  Attorney  Homans  during  1976-78  involved 
a  considerable  amount  of  pro  bono  work,  or  representation  of 
persons  of  very  limited  means.  I  represented  criminal 
defendants  on  appointment  and  indigent  clients  in  domestic 
cases  through  the  Massachusetts  Bar  Association. 

Following  my  arrival  in  Amherst,  I  was  able  to  return  to 
my  interest  in  the  legal  rights  of  the  mentally  ill  through  my 
work  as  the  Brewster  consent  decree  Monitor.  Moreover,  I 
continued  to  represent  indigent  criminal  defendants  by 
appointment  and  to  represent  indigent  or  low  income  persons  in 
domestic  and  other  civil  cases  on  a  reduced  or  no- fee  basis. 

Since  1987  I  have  been  involved  with  the  Amherst  chapter 
of  American  Field  Service,  three  years  as  its  president.  AFS 
sponsors  American  youngsters  for  svimmer,  semester  or  year-long 
programs  in  foreign  high  schools,  and  brings  high  school 
students  from  abroad  to  spend  a  year  in  the  United  States. 

33 


106 


While  I  was  president  our  chapter  was  able  to  raise  sufficient 
funds  to  provide  scholarships  for  low  income  applicants  who 
had  previously  found  the  cost  of  the  program  prohibitive. 


2.  Th«  AB«rlcan  Bar  Association's  Commentary  to  its  Coda  of 
Judicial  Conduct  states  that  it  is  inappropriata  for  a  judga 
to  hold  membership  in  any  organization  that  invidiously 
discriminates  on  the  basis  of  race,  sex  or  religion.  Do  you 
currently  belong,  or  have  you  belonged,  to  any  organization 
which  discriminates  —  through  either  formal  membership 
requirements  or  the  practical  implementation  of  membership 
policies?  If  so,  list,  with  dates  of  membership.  What  have 
you  done  to  try  to  change  these  policies? 

I  have  never  belonged  to  any  such  organization. 

3.  Is  there  a  selection  commission  in  your  jurisdiction  to 
recommend  candidates  for  nomination  to  the  federal  courts?  If 
so,  did  it  recommend  your  nomination?  Please  describe  your 
experience  in  the  entire  judicial  selection  process,  from 
beginning  to  end  (including  the  circumstances  which  led  to 
your  nomination  and  interviews  in  which  you  have 
participated) . 

There  was  a  selection  commission  in  Massachusetts,  and  it 

did  recommend  me  as  a  potential  nominee.   Following  my 

interview  with  the  commission  and  its  recommendation,  I 

was  interviewed  by  Senator  Edward  Kennedy,  who  forwarded 

my  name  to  the  President.   Thereafter,  I  was  inteirviewed 

by  a  representative  of  the  Justice  Department,  by  a 

special  agent  of  the  F.B.I.  ,  and  by  a  designee  of  the 

American  Bar  Association. 


4 .  Has  anyone  involved  in  the  process  of  selecting  you  as  a 
judicial  nominee  discussed  with  you  any  specific  case,  legal 
issue  or  question  in  a  manner  that  could  reasonably  be 
interpreted  as  asking  how  you  would  rule  on  such  case,  issue 
or  question?   If  so,  please  explain  fully. 

34 


107 


No. 

5.    Please  discuss  your  views  on  the  following  criticism  involving 
"judicial  activism." 

The  role  of  the  Federal  judiciary  within  the  Federal 
government,  and  within  society  generally,  has  become  the 
subject  of  increasing  controversy  in  recent  years.  It  has 
become  the  target  of  both  popular  and  academic  criticism  that 
alleges  that  the  judicial  branch  has  usurped  many  of  the 
prerogatives  of  other  branches  and  levels  of  government. 

Some  of  the  characteristics  of  this  "judicial  activism"  have 
been  said  to  include: 

a.  A  tendency  by  the  judiciary  toward  problem-solution 
rather  than  grievance-resolution; 

b.  A  tendency  by  the  judiciary  to  employ  the  individual 
plaintiff  as  a  vehicle  for  the  imposition  of  far-reaching 
orders  extending  to  broad  classes  of  individuals; 

c.  A  tendency  by  the  judiciary  to  impose  broad,  affirmative 
duties  upon  governments  and  society. 

d.  A  tendency  by  the  judiciary  toward  loosening 
jurisdictional  requirements  such  as  standing  and 
ripeness ;  and 

e.  A  tendency  by  the  judiciary  to  impose  itself  upon  other 
institutions  in  the  manner  of  an  administrator  with 
continuing  oversight  responsibilities. 

It  is  improper  for  a  judge  to  disregard  well 
established  boundaries  on  judicial  power,  embodied  in 
doctrines  such  as  standing  and  ripeness.   If  we  insist 
that  others  respect  the  rules,  we  must  follow  them 
ourselves. 

It  is  equally  true  that  a  judge's  focus  must  always 
be  on  the  case  at  hand.  The  couirts  are  not  making  stone 
soup,  with  the  litigant  in  the  role  of  the  worthless 
stone,  and  the  real  ingredients  —  the  meat  of  the  matter 


35 


108 


—  the  personal  social  concerns  of  the  judge. 

Moreover,  a  judge  must  always  bear  in  mind  our  system 
of  constitutional  government,   which  emphasizes  the 
coequal  roles  of  the  executive  and  legislative  branches, 
and  the  prerogatives  of  the  states  as  well,  and  maintain 
a  scrupulous  respect  for  them. 

The  standard  instruction  given  to  federal  juries 

at  the  conclusion  of  a  jury  trial  states: 

Both  the  parties  and  the  public  expect  that  you  will 
carefully  and  impartially  consider  all  the  evidence  in 
the  case,  follow  the  law  as  stated  by  the  court  and 
render  a  just  verdict,  regardless  of  the  consequences. 

Although  this  mandate  could  be  parsed  endlessly  — 
the  social  consequence  of  a  ruling,  for  example,  is  often 
a  legitimate  consideration  —  it  states  concisely  the 
role  of  the  court  as  well  as  the  jury,  both  in  finding 
facts  and  in  fashioning  appropriate  remedies  when 
necessary.  The  task  is  to  consider  the  evidence 
impartially,  follow  the  law  and  do  justice  in  the 
particular  case,  neither  manipulating  the  substance  of 
the  pleadings,  nor  fleeing  their  implications. 

In  the  beginning  of  the  book  of  Deuteronomy,  Moses, 

the  Lawgiver,  describes  the  attributes  of  a  good  judge: 

Hear,  the  causes  of  your  brethren  and  judge 
righteously  between  every  man  and  his  brother  and  the 
stranger  that  is  with  him.  Ye  shall  not  respect  persons 
in  judgment.  But  ye  shall  hear  the  small  as  well  as  the 
great  alike.  Ye  shall  not  be  afraid  of  the  face  of  any 
man. 

This  advice  —  to  address  the  cause,  to  be  unbiased. 


36 


109 


and  to  act  without  fear  —  timelessly  expresses  the 
challenge  facing  the  courts.  If  a  judge  concentrates  on 
the  facts  of  the  case,  and  addresses  the  issues  raised 
without  prejudice  or  timidity,  he  or  she  will  transcend 
topical  debates  and  gain  the  respect  even  of  those  who 
may  disagree  with  a  particular  decision. 


37 


no 

Michael  A.  Ponsor 

ATTACHMENT  1  -  Speeches  and  Presentations 

Panel  Member:  "Federal  Court  Judicial  Forum  '93."  Boston,  MA. 
September  22,  1993.   Sponsored  by  MCLE. 

Presenter:  "The  Role  of  Rule  11  Sanctions."  Spring  seminar 
sponsored  by  Massachusetts  Defense  Lawyers  Association.  Boston, 
MA.   May  14,  1993. 

Presenter:  "Settlement  Conference  Techniques  and  Alternative 
Dispute  Resolutions  in  Federal  Courts."  National  Workshop  for 
District  Judges  I,  New  Orleans,  LA.   March  22  -  24,  1993. 

Faculty:  "How  to  Try  a  Discrimination  Case  to  a  Jury."  Suffolk 
University  Law  School,  Boston,  MA.   February  26,  1993. 

Presenter:  "Seminar  on  New  Local  Rules."  Springfield,  MA. 
Sponsored  by  Hampden  County  Bar  Association.   February  25,  199  3. 

Presenter:    "Seminar  on  New  Local  Rules."    Worcester,   MA. 
Sponsored  by  the  Boston  Chapter  of  Federal  Bar  Association. 
October  27,  1992. 

Presenter:  "Seminar  on  New  Local  Rules."  Chicopee,  MA.  October 
14,  1992.   Sponsored  by  MCLE. 

Presenter:  "Discovery:  Techniques  for  Expedited  Resolution  of 
Discovery  Disputes."  Workshop  for  U.S.  Magistrate  Judges  of  the 
4th,  5th,  11th  and  DC  Circuits,  St.  Petersburg,  Florida.  September 
14  -  16,  1992. 

Presenter:  "Discovery:  Techniques  for  Expedited  Resolution  of 
Discovery  Disputes."  Workshop  for  U.  S.  Magistrate  Judges  of  the 
1st,  2nd,  3rd,  6th  and  7th  Circuits,  Philadelphia,  PA.  July  15  - 
17,  1992. 

Presenter;  "Process  Design  and  Format  Issues  in  Settlement  of 
Civil  Cases."  Advanced  Workshop  on  Settlement  for  U.  S.  Magistrate 
Judges,  Boston,  MA.   June  14  -  17,  1992. 

Presenter:  "Discovery:  Techniques  for  Expedited  Resolution  of 
Discovery  Disputes."  Workshop  for  Magistrate  Judges  of  the  8th, 
9th  and  10th  Circuits,  Santa  Fe,  New  Mexico.   April  28,  1992. 

Presenter:  "Summary  Judgment:  An  Overview  of  Summary  Judgment." 
Workshop  for  Magistrate  Judges  of  the  8th,  9th  and  10th  Circuits, 
Santa  Fe,  New  Mexico.   April  28,  1992. 

Presenter:  "Federal  Court  -  Law  and  Practice,"  Springfield, 
Massachusetts.  January  16,  1992.  Sponsored  by  Hampden  County  Bar 
Association. 


Ill 


Presenter;  "The  Americans  With  Disabilities  Act  —  A  Judicial 
Perspective, "  Mercy  Hospital,  Springfield,  Massachusetts.  November 
13,  1991.  Sponsored  by  Greater  Springfield  Chamber  of  Commerce, 
Workwise  at  Mercy  Hospital,  Employer's  Association  of  Western  Mass. 

Presenter;  "Critical  Motions  in  the  Federal  Courts,"  Federal  Court 
Judicial  Forvun  '91,  Boston,  Massachusetts.  October  24,  1991. 
Sponsored  by  MCLE. 

Presenter;  "Attorney/ Client  Privilege  and  Work  Product  Doctrine," 
Workshop  for  U.S.  Magistrate  Judges,  1st,  2nd,  3rd,  6th  and  7th 
Judicial  Circuits,  Warren,  Vermont.   August  7-9,  1991. 

Faculty;  Attorney  General's  Advocacy  Institute,  July  17-19,  1991 
U.S.  Department  of  Justice,  Office  of  Legal  Education,  Washington, 
D.C. 

Presenter:  "Attorney/Client  Privilege  and  Work  Product  Doctrine," 
Workshop  for  U.S.  Magistrate  Judges,  4  th,  5th,  11th  and  D.C. 
Judicial  Circuits,  Washington,  D.C.   July  9,  1991. 

Presenter:  "Case  Management  and  Discovery  Issues  in  Environmental 
Litigation,"  Boston,  Massachusetts,  June  12,  1991.  Sponsored  by 
Boston  Bar  Association. 

Presenter:  "Trial  Practice  &  Procedure:  Employment  &  Labor  Law," 
Springfield,  Massachusetts.  October  26,  1990.  Sponsored  by 
Massachusetts  Academy  of  Trial  Lawyers. 

Presenter:  "Federal  Court  Practice,"  October  3,  1990,  Northampton, 
Massachusetts.   Sponsored  by  Hampshire  County  Bar  Association. 

Faculty;  Trial  Advocacy  Workshop,  September  21,  1990,  Harvard  Law 
School,  Cambridge,  Massachusetts. 

Presenter:  "Civil  Pre-trial  Practice  in  U.  S.  District  Court," 
February  22,  1990,  Springfield,  Massachusetts.  Sponsored  by 
Hampden  County  Bar  Association,  Young  Lawyer's  Section. 

Facultv;  Trial  Advocacy  Workshop,  January  22-26,  1990.  Harvard 
Law  School,  Cambridge,  Massachusetts. 

Faculty:  Attorney  General's  Advocacy  Institute,  October  25-27, 
1989,  U.S.  Department  of  Justice,  Office  of  Legal  Education, 
Washington,  D.C. 

Presenter;  "Abusive  Discovery,"  July  12,  1989,  Seminar  for  U.  S. 
Magistrates  of  the  1st,  2nd,  3rd,  4th  &  D.C.  Circuits,  Boston, 
Massachusetts . 


Presenter;  "Federal  District  Court  Practice,  Social  Security 
Disability,"  May  22,  1989,  Holy  Cross  College,  Worcester, 
Massachusetts.   Sponsored  by  Disability  Law  Center. 


112 


Presenter:  "Damages  in  Employment  Cases,"  May  12,  1989,  Fourth 
Annual  New  England  Employee  Relations  Conference,  Boston, 
Massachusetts.  Sponsored  by  Massachusetts  Bar  Association  and 
Massachusetts  Continuing  Education. 

Presenter;  "Federal  Practice  and  Procedure,  A  View  from  a  Session 
of  the  U.  S.  District  Court,"  November  2,  1988,  Springfield, 
Massachusetts.  Sponsored  by  Massachusetts  Continuing  Legal 
Education. 

Presenter:  "Rule  11  and  Discovery  Sanctions,"  March  16,  1988, 
Boston,  Massachusetts.  Sponsored  by  the  Federal  Bar  Association, 
Boston  Chapter. 

Presenter:  "Representing  Criminal  Defendants  in  Federal  Criminal 
Court:  Comparison  with  State  Court  Proceedings,"  March  24,  1988, 
Boston,  Massachusetts.  Sponsored  by  Massachusetts  Bar  Association, 
Criminal  Justice  Section. 

Presenter:   "Use  of  Sanctions  in  State  and  Federal  Courts," 

May   30,   1987,   Sturbridge,   Massachusetts.      Sponsored   by 

Massachusetts  Bar  Association. 

Presenter:  "Recent  Developments  in  Massachusetts  Federal  Court 
Practice,"  February  2,  1987,  Chicopee,  Massachusetts.  Sponsored  by 
Massachusetts  Bar  Association. 

Presenter:  "Civil  and  Criminal  Forfeiture,"  October  15,  1986, 
Dixville  Notch,  New  Hampshire,  Magistrates'  Session,  First  Circuit 
Judicial  Conference. 

Presenter:  "Insider's  Guide  to  Federal  District  Court,"  April  16, 
1986,  Chicopee,  Massachusetts.  Sponsored  by  Massachusetts  Bar 
Association,  Young  Lawyers  Division. 

Presenter:  "How  to  Put  a  Personal  Injury  Case  Together,"  April  20, 
1985,  Springfield,  Massachusetts.  Sponsored  by  Massachusetts 
Continuing  Legal  Education. 


113 

Senate  Judiciary  Committee  Questionnaire 
Judge    Lesley   Brooks   WeU^ 

I.  Biographical  Information  (Public) 

1.  Fu]l  Name  (include  any  former  names  used): 

Lesley  Brooks  Wells 

Born:  Lesley  Simpson  Wells 

Married:  Lesley  Simpson  Brooks 

2.  Address:  List  current  place  of  residence  and  office  address(es): 

Residence:  Office: 

1 6926  East  Park  Drive  Court  of  Common  Pleas 

Cleveland,  Ohio  44119  Cuyahoga  County 

Justice  Center,  16-B 
1200  Ontario  Street 
Cleveland.  Ohio  44113 

3.  Date  and  place  of  birth: 

October  6.  1937 
Muskegon,  Michigan 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's  name).  List  spouse's 
occupation,  employer's  name  and  business  address(es): 

Divorced 


5.         Education:  List  each  college  and  law  school  you  have  attended,  including  dates  of 
attendance,  degrees  received,  and  dates  degrees  were  granted. 

J.D..  cum  laude.  1974  Cleveland  State  University,  1969  - 1970 

Cleveland-Marshall  College  of  Law  1 972  -  1 974 
Cleveland,  Ohio 

B.A.  Philosophy.  Chatham  College.  1955-1959 

English.  1959  Pittsburgh.  Pennsylvania 


114 


JUDGE   LESLEY    BROOKS    WELLS 


Pa  g  e    2 


Education,  continued: 

Certificates 


Graduate  Study 
Toward  Masters  Degree 
College  of  Urban  Affairs 

Fellow 


National  Judicial  College, 
University  of  Nevada 
Reno,  Nevada 


1983  -  Present 


Cleveland  State  University,  1979  -  1983 

Cleveland,  Ohio 

Institute  for  Humanities  and  Medicine,  1991  -  1992 

National  Endowment  for  Humanities 


Employment  Record:  List  (by  year)  aD  business  or  professional  corporations, 
companies,  firms,  or  other  enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were  connected  as  an 
officer,  director,  partner,  proprietor,  or  employee  since  graduation  from  college. 


1989- 

-  Present 

Chatham  College,  Pittsburgh,  Pennsylvania 

Trustee 

1989- 

-1990 

Urban  League  of  Cleveland 

Trustee 

1988- 

-1992 

Miami  University,  Oxford,  Ohio 

Trustee 
Officer 

1986- 

-1992 

Rose  Mary  Center  for  Disabled  Children 

Trustee 

1983- 

-  Present 

Common  Pleas  Court,  Cuyahoga  County,  Ohio 

Judge 

1980- 

-1983 

Schneider,  Smellz,  Huston  &  Ranney 
(now  Schneider,  Smellz,  Ranney  &  LaFond) 
Cleveland,  Ohio 

Associate 
Attorney 

1980- 

-1983 

Cleveland  State  University 
College  of  Urban  Studies 

Adjunct  Asst, 
Professor 

1980- 

-1981 

Cleveland  State  University 
Cleveland-Marshall  College  of  Law 

Adjunct 
Instructor 

1979- 

-1980 

ABAR  III  Litigation  Center 
Cleveland  State  University 

Attorney/ 
Director 

1975- 

-1979 

Brooks  &  Moffet,  Attorneys  at  Law 

Partner 

1975 

Lesley  Brooks,  Attorney  at  Law 

Attorney 

1970- 

-1973 

Design  Comer 

Clerk 

115 


JUDGE   LESLEY   BROOKS    WELLS 


Pages 


6.  Emplovment  Record.  conKmipri; 

1970's  WomenSpace  Trustee 

1970's  Heights  Community  Congress  Trustee 

1970's  Heights  YMCA  Trustee 

1970's  Cuyahoga  Women's  Political  Caucus  Trustee 

1960  - 1961  Brown  Jug  Restaurant  Waitress 

7.  Military  ggrvicg;  Have  you  had  any  military  service?  If  so,  give  particulars 
including  the  dates,  branch  of  service,  rank  or  rate,  serial  number  and  tvoe  of 
discharge  received. 

None 

*•         Honprs  an<l  Aw^rfls;  List  any  scholarships,  fellowships,  honorary  degrees,  and 
honorary  society  memberships  that  you  believe  would  be  of  interest  to  the 
Committee. 

•  Alumni  Award  for  Civic  Achievement,  1992 
Cleveland  State  University 

•  Fellow,  Institute  for  Humanities  and  Medicine,  1991-1992 
National  Endowment  for  Humanities 

•  Distinguished  Alumna  Award,  Chatham  College  1988 

•  Compassionate  Judicial  Insight  Award,  1  go* 
The  Women's  City  Club 

•  Josephine  Irwin  Award  for  Outstanding  Service,  1984 
WomenSpace 

•  Merit  Service  Award.  Bar  Association  of  Greater  Cleveland  1982 

•  Superior  Judicial  Award,  Supreme  Court  of  Ohio 

•  Who's  Who  in  America  and  American  Law 

•  Martindale-Hubbell:  AV 

•  Book  Award,  Constitutional  Law,  Cleveland  Marshall  College  of  Law 

•  Alumnae  Scholar,  Chatham  College 


116 


JUDGE  LESLEY   BROOKS    WELLS 


Pa  g  e    4 


9.         Bar  Associations:  List  all  bar  associations,  legal  or  judicial-related  committees  or 

conferences  of  which  you  are  or  have  been  a  member  and  give  the  titles  and  dates  of 
any  offices  which  you  have  held  in  such  groups. 

•  The  American  Inns  of  Court,  No.  91 

Harold  H.  Burton  Chapter 
Counselor 
Master  of  the  Bench 
Membership  Committee 

•  Ohio  Women's  Bar  Association 

Founding  Member 

Chair,  Bar  Liaison  Committee 


•  Representative  of  the  Supreme  Court  of  Ohio: 

Steering  Committee  of  the  Ohio  Supreme  Court/Ohio  State 

Bar  Association,  Joint  Task  Force  on  Gender  Fairness 
Chairperson,  Gender  Bias  Education 
National  Judicial  College,  Biomedical  Ethics  and  the  Law  (1990) 

•  Cleveland  State  University  Law  and  Public  Policy  Program 

External  Advisory  Board 

•  Common  Pleas  Court  Committees 

Civil  Rules,  Legislative,  Social,  Jail  Facilities, 
Civil  Court,  Criminal  Court 

•  College  of  Urban  Affairs,  Cleveland  State  University 

Visiting  Committee 

•  Cleveland-Marshall  College  of  Law,  Cleveland  State  University 

Visiting  Committee 

•  Judicial  Conference  of  the  Eighth  Judicial  District,  Life  Member 

•  American  Bar  Association 

National  Conference  of  State  Trial  Judges 

Ethics  and  Professional  Responsibility  Committee  (1986) 
AIDS  Committee  (1990) 

•  National  Association  of  Women  Judges 

•  Ohio  State  Bar  Association 

Eighth  District,  Nominating  Committee  (1989) 

Board  of  Governors,  Section  on  Women  in  the  Profession  (1993) 

•  Ohio  Judicial  Conference 

Vice  Chair,  Civil  Law  and  Procedure  Committee  (1993) 

•  Ohio  Common  Pleas  Judges  Association 

•  National  Bar  Association 


1993 -Present 
1990 -Present 
1993-1993 

1992 -Present 

1992 -Present 

1991  -  1993 

1991-1993 

1991-1993 

1989 -Present 

1988 -Present 

1987-1993 

1986 -Present 
1986 -Present 

1984 -Present 
1983 -Present 

1983 -Present 

1983 -Present 
1980 


117 


JUDGE   LESLEY    BROOKS    WELLS 


Page    5 


1978-1983 
1975  -  Present 


Bar  Associations,  continued: 

•  The  Association  of  Trial  Lawyers  of  America 

•  Cleveland  Bar  Association 

Commission  on  Women  and  Law; 

Vice  Chair,  Reorganization  Committee; 

Committee  on  Mentally  Disabled;  Bar  Advocacy  Project; 

C.A.S.E.  Program  (Pro  bono  indigent  representation) 

•  Cuyahoga  County  Bar  Association 

Long  Range  Planning  Committee 
Municipal  Courts  Committee 

•  National  Association  of  Women  Lawyers 

•  Cleveland  Women  Lawyers  Association 

•  Cleveland-Marshall  Law  Alumni  Association 

Life  Member 

•  Legal  Aid  Society  of  Cleveland 

President  (1979 -1981). 

Treasurer;  Executive  Committee;  Trustee;  Audit  Committee; 

Chair,  Nominating  Committee;  Personnel  Committee 


1974 -Present 

1974-1983 
1974-1983 
1974 -Present 

1967-1983 


10.        Other  Memberships:  List  all  organizations  to  which  you  belong  that  are  active  in 
lobbying  before  public  bodies.  Please  list  all  other  organizations  to  which  you 
belong. 

None  of  the  organizations  to  which  I  belong  really  are  active  in  lobbying  except  as  the 
college  and  university  may  be  affiliated  with  educational  groups  which  may  lobby. 


•  Chatham  College,  Pittsburgh,  PA 

Board  of  Trustees 

•  Case  Western  Reserve  University  School  of  Medicine, 

Center  For  Biomedical  Ethics,  Advisory  Board 

•  Trinity  Cathedral,  Episcopal  Diocese  of  Ohio 

•  The  City  Club,  Cleveland 

•  The  Club,  Society  Center,  Cleveland 


1989 -Present 
1986 -Present 

1993 

1982  -  Present 


118 


JUDGE   LESLEY    BROOKS    WELLS  Page    6 


11.  Court  Admission:  List  all  courts  in  which  you  have  been  admitted  to  practice,  with 
dates  of  admission  and  lapses  if  any  such  memberships  lapsed.  Please  explain  the 
reason  for  any  lapse  of  membership.  Give  the  same  information  for  administrative 
bodies  which  require  special  admission  to  practice. 

The  Supreme  Court  of  the  United  States  1989 

State  of  Ohio  1975 

U.S.  District  Court,  Northern  District  of  Ohio  1975 

12.  Published  Writings:  List  the  titles,  publishers,  and  dates  of  books,  articles,  reports, 
or  other  published  material  you  have  written  or  edited.  Please  supply  one  copy  of  all 
published  material  not  readily  available  to  the  Committee.  Also,  please  supply  a 
copy  of  all  speeches  by  you  on  issues  involving  constitutional  law  or  legal  policy.  If 
there  were  press  reports  about  the  speech,  and  they  are  readily  available  to  you, 
please  supply  them. 

• "  'Wise  Restraints  Make  People  Free:  The  Bicentennial  of  the  Bill  of 
Rights',"  Cleveland  Bar  Journal,  Jan.  1991,  Vol.  62,  No.  3,  pg.  73  -74. 
Exhibit  for  Question  12,  Judiciary  Committee. 

•  Editor  and  an  author,  ABAR  ID  Civil  Rights  Litigation  Manual. 

Federal  and  state  civil  rights  remedies,  federal  procedure,  discovery, 
class  actions,  intervention,  interlocutory  appeals,  burden  of  proof, 
attorney  fees,  etc.,  1980;  2nd  Edition,  1981.  500  pgs.  Exhibit  for 
Question  12,  Judiciary  Committee. 

•  Editor,  Family  Violence,  Summary  Report  to  the  Governor,  Task  Force  on  Family 

Violence,  December  1986.  Exhibit  for  Question  12,  Judiciary  Committee. 

13.  Health:  What  is  the  present  state  of  your  healtli? 
Excellent 

List  the  date  of  your  last  physical  examination. 

May  26,  1993 


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JUDGE   LESLEY    BROOKS    WELLS 


Page? 


14.       Judicial  Office:  State  (chronologically)  any  judicial  offices  you  have  held,  whether 
such  position  was  elected  or  appointed,  and  a  description  of  the  jurisdiction  of  each 
such  court. 


Office            Elected  or  Appointed 

Term 

Jurisdiction 

Judge             Elected  1988 

1/89- 

1/95 

Constitutional  court  of 
general  original  jurisdiction 

Court  of  Common  Pleas 

Civil,  at  law  and  in  equity 

General  Division 

where  sum  or  matter  in 
dispute  exceeds  $10,000; 
appellate  jurisdiction  from 
certain  state  and  local 
boards;  criminal  felony 
jurisdiction. 

Judge             Appointed  1983 

3/83- 

■1/85 

Divorce,  legal  separation, 
annulment  and  child  custod^ 

Elected  1984 

1/85- 

•1/87 

Elected  1986 

1/87- 

•1/94 

Court  of  Common  Pleas 
D.R.  Division 


15.       Citations:  If  you  are  or  have  been  a  judge,  provide: 

(1)       Citations  for  the  ten  (10)  most  significant  opiru'ons  you  have  written: 

See  Exhibit  for  Question  15  (J),  Judiciary  Committee. 

Ohio  V.  Walker,  Case  No.  268354,  November  21, 1991. 

Powe  V.  Powe  (1987)  38  Ohio  Misc  2d  5. 

Vrndavan  v.  Malcolm,  et  al.  Case  No.  193258,  December  2,  1992. 

Eaton,  et  al  v.  Aetna,  et  al.  Case  No.  189068,  September  23,  1991. 

Ohio  V.  Dellanno,  Case  No.  240217,  March  7.  1990. 

Thomas  et  al  v.  LTV  Steel  Co.,  Inc.  et  al,  CV  167508,  April  30th,  1992. 

Duale,  Adm.,  et  al  v.  RTA,  Case  No.  134037/171715.  January  3rd,  1992. 

Cookston  V.  Conroy,  Case  No.  178792,  August  15, 1990. 

Spencer,  et  al  v.  McGill,  et  al,  and  Diversified  Equities,  et  al.  Case  No.  195882, 
May  4,  1992;  Court  of  Appeals  Case  No.  64215,  Affirmed  per  curiam,  April  8,  1993. 

Essef  Corporation  v.  Mordecki  Drori,  Case  No.  245551,  October  6,  1993. 


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JUDGE  LESLEY    BROOKS    WELLS  Page    8 


(2)  A  short  summary  of  and  citations  for  all  appellate  opinions  where  your  decisions 
were  reversed  or  where  your  judgment  was  affirmed  with  significant  criticism  of 
your  substantive  or  procedural  rulings: 

Reversed:  Seven  (7)  cases  out  of  147  appealed  in  eleven  (11)  years. 
Exhibit  for  Question  15  (2)(a),  Judiciary  Committee 

Ohio  V.  Walker,  CA  #62862  (CR-268354),  October  28, 1993. 
This  was  a  death  penalty  aggravated  murder  and  mass  murder  case  with  seven  (7) 
defendants,  each  entitled  to  separate  trial  and  capital  jury  venire.  Each  man  was  charged 
also  with  aggravated  burglary,  aggravated  robbery,  attempted  murder  and  two  (2)  counts 
of  kidnapping.  Only  WaUcer  retained  counsel.  The  court  appointed  two  lawyers  for  each 
of  the  other  six  defendants.  The  Court  of  Appeals  reversed  Walker's  case  for  ineffective 
assistance  of  counsel  "in  failing  to  properly  move  for  suppression  of  the  evidence 
obtained  from  defendant's  apartraenL"  para.  Ill,  pg.  21.  Reversed  and  remanded. 

State  Automobile  Mutual  Insurance  Co.  v.  Rainsberg 

CA  #  61875  (CP  #  191732),  February  4,  1993. 

In  an  uninsured  motorist  declaratory  judgment  case.  Slate  Auto  Insurance  appealed  the 
trial  court's  summary  judgment  to  an  employee  injured  while  operating  a  company  van 
insured  by  State  Auto.  The  Court  of  Appeals  decided  the  employee  was  not  entitled  to 
recover  damages.  Reversed  and  remanded. 

Hedges  v.  Gallagher,  Sharp,  Fulton  and  Norman  et  al, 

CA#63129(CP#  186,401),  October  15,  1992. 

A  woman  sued  in  negligence  for  a  hand  injury  from  a  conference  room  door  at  a  law 
furn  where  she  was  deposed.  The  trial  court  granted  summary  judgment  for  the  firm  but 
the  Court  of  Appeals  found  a  jury  issue  in  the  employee's  duties  involuntarily  opening 
the  door  for  the  woman.  Reversed  and  remanded. 

Hosaflook  v.  Bar-linn,  Inc., 

CA#  60382  (CP  #  157366),  June  4.  1992. 

The  trial  court  granted  a  directed  verdict  for  the  Bar  in  a  negligence  case  for  plaintiffs 
failure  to  present  medical  proof  on  the  issue  of  proximate  cause.  Hosaflook,  a  bar  patron, 
allegedly  fell  off  a  bar  stool.  No  witness  saw  him  fall.  Bar  employees  refused  to  serve 
him  more  alcohol  but  could  find  no  one  to  drive  him  home.  They  locked  him  in  his  car 
to  "sleep  it  off,"  taking  the  keys  inside  for  his  safety.  An  hour  later  he  was  found  lying 
in  the  parking  lot.  There  were  no  witnesses  as  to  how  he  got  out  of  his  car  or  how  he  got 
a  laceration  over  his  eye.  Two  appellate  judges  found  sufficient  evidence  to  connect  his 
skull  fracture  to  a  thump  heard  in  the  bar.  One  judge  dissented  due  to  the  intervening  fall 
in  the  lot.  Reversed  and  remanded. 

Zaiewski  v.  Zaiewski 

C A#  5 1 470  (CP  85  D- 1 59 1 54),  January  22,  1 987. 

A  Polish  woman,  57  and  disabled,  came  to  the  U.S.  to  defend  her  29  year  old  marriage 
when  she  was  sued  for  divorce  by  her  husband  who  had  come  to  the  U.S.  in  1970, 
leaving  her  behind  to  raise  their  two  sons.  The  trial  was  conducted  with  Polish 
translation.  Mrs.  Zaiewski  repeatedly  tried  to  leave  Poland  to  join  her  husband  but  was 
unsuccessful  because  he  had  remained  in  the  U.S.  illegally.  The  husband  sued  for  divorce 
on  the  grounds  the  parties  lived  one  year  apart  without  cohabitation.  The  trial  court 
concluded  the  parties'  separation  was  not  voluntary,  given  the  actions  of  the  Polish 
government.  The  Court  of  Appeals  disagreed  and  ordered  the  divorce  granted.  Reversed. 
Husband  granted  divorce. 


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JUDGE   LESLEY    BROOKS    WELLS  Page    9 


(2)        Citations,  continued: 

Turoczy  v.  Turoczy, 

CA#  50729  (CP  D- 126 135),  June  12,  1986. 

After  a  divorce  incorporating  a  settlement,  wife  charged,  and  the  court  on  hearing  found, 
that  husband  "had  knowingly  and  intentionally  transferred  money  and  marital  assets" 
and  that  his  concealment  of  assets  was  a  fraud  on  the  court  The  Court  of  Appeals  held 
that  only  fraud  by  an  officer  of  the  court  could  constitute  fraud  on  the  court  and  reversed 
reinstating  the  original  settlement. 

Gramsz  v.  Gramsz, 

CA#  49276/49280  (CP  D-139721),  June  27,  1985. 

This  case  was  heard  by  two  trial  referees.  Several  rounds  of  objections  were  filed 

to  the  referees'  reports.  Several  time  extensions  were  granted.  The  trial  court  denied  one 

of  the  wife's  motions  for  additional  time  to  file  objections.  The  Court  of  Appeals  found 

such  denial  was  error,  reversed  and  remanded. 

Affirmed  in  part;  reversed  in  part:  Five  (5)  cases  of  147  appealed. 
Exhibit  for  Question  15  (2)(b),  Judiciary  Committee 

Ohio  V.  Klanac 

CA  #  63647  (CP#  271062),  September  7, 1993. 

A  jury  convicted  Klanac  of  aggravated  murder  and  kidnapping.  Klanac  refused  to 
participate  in  his  trial  and  was  tried  in  absentia.  The  Court  of  Appeals  found  there  was  no 
intent  to  hold  the  murder  victim  as  a  "shield  or  hostage"  and  reversed  the  kidnapping  but 
not  the  aggravated  murder  conviction. 

Ohio  V.  Knowles, 

CA#  61881  (CP#  259154),  March  4,  1993. 

The  jury  convicted  Knowles  of  aggravated  murder,  murder,  aggravated  robbery  and 
having  a  weapon  as  a  felon.  The  Court  of  Appeals  ordered  the  murder  and  firearm 
sentences  merged. 

Filmore  et  al  v.  Convention  et  al, 

CA  #  61269  (CP  #  152102),  October  29,  1992. 

One  hundred  or  so  convention  visitors  claimed  they  became  ill  at  a  banquet  and  they 
sued.  The  trial  court  granted  all  defendants  summary  judgment  as  plaintiffs  failed  to 
provide  evidence  connecting  defendants  to  the  alleged  il&ess.  The  Court  of  Appeals 
upheld  the  trial  court  as  to  all  but  one  defendant  regarding  whom  the  case  was  reversed 
and  remanded. 

Ohio  V.  Hollins, 

CA  #  60148  (CP  #  250867),  April  23,  1992. 

Hollins  was  found  guilty  of  aggravated  burglary,  felonious  assault  and  kidnapping  plus 
a  prior  conviction  enhancement  was  established.  The  Court  of  Appeals  vacated  the 
•  felonious  assault  conviction,  finding  defendant  should  not  have  been  convicted  of  both 
assault  and  kidnapping  as  they  sprang  from  the  same  conduct.  Otherwise,  the  court 
affurned. 


122 


JUDGE   LESLEY    BROOKS    WELLS  Page    10 


(2)  Citations,  continued: 

Merkel  v.  Merkel. 

CA  #  53561  (CP  #  166520).  May  12.  1988. 

In  a  contested  divorce,  the  court  entered  findings  including  escrowed  ($10,000) 

settlement  funds  of  husband  and  his  girlfriend  as  marital  property  and  awarded  them 

equally  to  the  parties  after  allocating  one-half  to  the  girlfriend  who  was  entitled  by  prior 

Federal  Court  order  to  share  in  the  underlying  settlement  The  Court  of  Appeals  disagreed 

with  the  finding  and  award;  otherwise  agreed.  Reversed  and  remanded  on  property 

division. 

(3)  Citations  for  significant  opinjons  on  federal  or  state  constitutional  issues,  together 
with  the  citation  to  appellate  court  rulings  on  such  opinions.  If  any  of  the  opinions 
listed  were  not  officially  reported,  please  provide  copies  of  the  opinions: . 

1  am  on  a  court  of  first  impression  and  general  jurisdiction.  Such  courts  do  not  often 
engender  constitutional  issues.  However,  they  regularly  apply  constitutional  principles 
which  I  have  been  obliged  to  do  orally,  in  uial,  on  hundreds  of  occasions.  See  Exhibit  for 
Question  15  (3),  Judiciary  Committee. 

State  v.  Burrage,  CR  268354,  Appeal  63824,  affirmed  oral  trial  opinion, 
October  18.  1993. 

State  V.  Hall,  CR  269798,  Appeal  63771,  affirmed  oral  trial  opinion. 
October  12.  1993. 

State  v.  Fair,  CR  279394.  Appeal  64843.  affirmed  oral  trial  opinion. 
June  17.  1993. 

Willingham  v.  Cleveland  et  al,  CV  134681,  June  23. 1992. 

Vodan  v.  Strongsville,  CV  190982.  June  23. 1992. 

State  v.  King,  CR  246047,  Appeal  59536.  affirmed  oral  trial  opinion. 
December  18,  1991. 

State  v.  Richard,  CR  214217,  Appeal  60741.  affirmed  oral  trial  opinion, 
November  25,  1991. 

Silverberg  v.  MayHeld  Heights.  CV  194148.  August  8. 1990. 

State  V.  Dellanno,  CR  240217.  March  7.  1990. 

Grafton  v.  Emplex  Systems,  Inc.  CV  229243.  November  16, 1989. 


123 


JUDGE   LESLEY    BROOKS    WELLS  Page    11 


16.  Public  Office:  State  (chronologically)  any  public  offices  you  have  held,  other  than 
judicial  offices,  including  the  terms  of  service  and  whether  such  positions  were 
elected  or  appointed.  State  (chronologically)  any  unsuccessful  candidacies  for 
elective  public  office: 

•  Democratic  Precinct  Committee  Person:  198 1  -  1983 
Cleveland,  Ward  11,  Precinct  I,  Elected. 

Cleveland  Heights,  Ward  2.  Precinct  F,  Elected.  1965  -  1972 

•  Unsuccessful  candidacy: 

Justice,  Ohio  Supreme  Court,  1992  Primary. 

17.  Legal  Career: 

a.         Describe  chronologically  your  law  practice  and  experience  after  graduation  from 
law  school  including: 

1.  Whether  you  served  as  clerk  to  a  judge,  and  if  so,  the  name  of  the  judge,  the 
court,  and  the  dates  of  the  period  you  were  a  clerk; 

No 

2.  Whether  you  practiced  alone,  and  if  so,  the  addresses  and  dates; 

Yes. 

Lesley  Brooks  Wells,  Esq.  1975 

2385  Kenilworth  Road 
Cleveland  Heights,  Ohio  44106 

3.  The  dates,  names  and  addresses  of  law  firms  or  office,  companies  or 
governmental  agencies  with  which  you  have  been  connected,  and  the 
nature  of  your  connection  with  each; 

Judge  1983 -Present 

Cuyahoga  County  Court  of  Common  Pleas 
Justice  Center  and  Lakeside  Court  House 
Cleveland,  Ohio  44113 

Attorney  1980-1983 

Schneider,  Smeltz,  Huston  &  Ranney 
Now:  Schneider,  Smeltz,  Ranney  and  LaFond 
1525  National  City  Bank  Building 
Cleveland,  Ohio  44114 

Attorney/Director  1 979  -  1 980 

ABAR  III  Civil  Rights  Litigation  Support  Center 
Cleveland-Marshall  College  of  Law 
1801  Euclid  Avenue 
Cleveland.  Ohio  44115 
(Serving  14  slates  in  5  Federal  Circuits) 


124 


JUDGE    LESLEY    BROOKS    WELLS 


Page    12 


17.        Legal  Career,  continued: 

Adjunct  Assistant  Professor 
Law  and  Urban  Policy 
College  of  Urban  Affairs 
Cleveland  State  University 
1801  Euclid  Avenue 
Cleveland,  Ohio  44115 

Adjunct  Instructor 

Cleveland-Marshall  College  of  Law 
1801  Euclid  Avenue 
Cleveland.  Ohio  44115 

Attorney/Partner,  Brooks  &  Moffet 
Cedar  and  Fairmount 
Cleveland,  Ohio  44106 

Sole  Practitioner,  Lesley  Brooks,  Esq. 
2385  Kenilworth  Road 
Cleveland  Heights,  Ohio  44106 

Federal  Court  Intern 

Women's  Law  Fund 
Cleveland,  Ohio 

Volunteer 

Legal  .\id  Society  of  Cleveland 
Me'^ntal  Health  Unit 
Cleveland,  Ohio 

Lecturer 

Cleveland  State  University 
College  of  Law  and 
CoUese  of  Urban  Affairs 
Cleveland,  Ohio  44115 


1980-1983 

1990 -Present 
(pro  bono) 


1980-1981 


1975-I97S 


1975 


1973-1974 


1970-1971 


1974 -Present 
(pro  bono) 


1.  What  has  been  the  general  character  of  your  law  practice,  dividing  it  into  periods 
with  dates  if  its  character  has  changed  over  the  years? 

2.  Describe  your  typical  former  clients,  and  mention  the  areas,  if  any,  in  which  you 
have  specialized. 

Before  I  became  a  trial  judge  in  1983.  I  maintained  a  general  civil  practice  including 
civil  rights,  domestic  relations,  tort,  business,  commercial,  tax,  trusts,  estates,  consumer, 
real  estate,  education,  mental  health,  administrative  and  election  law.  1  moved  from  a 
neighborhood  law  office  to  the  university,  then  to  an  established  downtown  law  firm. 
Specialization  included  two  years  concentration  in  federal  practice  and  civil  rights  law. 

In  the  neighborhood  practice,  my  clients  were  predominantly  individuals  and  families. 
At  Schneider,  Smeltz,  Huston  &  Ranney,  small  and  medium  businesses,  health, 
educational  and  charitable  organizations  were  also  my  clients. 


125 


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17.        Legal  Career,  continued: 

c         1.  Did  you  appear  in  court  frequently,  occasionally,  or  not  at  all?  If  the  frequency  of 
your  visits  varied,  describe  each  such  variance,  giving  dates. 

I  appeared  in  court  occasionally  as  a  lawyer. 

2.  What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

34% 

(b)  state  of  courts  of  record; 
66% 

(c)  other  courts. 
0 


3.  What  percentage  of  your  litigation  was: 

(a)  civil; 

100% 

(b)  criminal. 
0 

4.  State  the  number  of  cases  in  courts  of  record  you  tried  to  verdict  or  judgment 
(rather  than  settled),  indicating  whether  you  were  sole  counsel,  chief  counsel,  or 
associate  counsel. 

Of  eighteen  (18)  cases,  I  tried  eight  (8)  cases  to  judgment,  four  (4)  as  lead  counsel, 
three  (3)  as  sole  counsel,  and  one  (1)  as  associate  counsel.  The  rest  settled  during  trial. 

5.  What  percentage  of  these  trials  was: 

(a)  jury; 

0 

(b)  non-jury. 

100% 


126 

JUDGE   LESLEY    BROOKS    WELLS  Page    14 


18.       Litigation:  Describe  the  ten  (10)  most  sgniflcant  litigated  matters  you  personally 
handled.  Give  the  citations,  if  the  cases  were  reported,  and  the  docket  number  and 
date  if  unreported.  Give  a  capsule  summary  of  the  substance  of  each  case.  Identify 
the  party  or  parties  whom  you  represented;  describe  in  detail  the  nature  of  your 
participation  in  the  litigation  and  the  final  disposition  of  the  case.  Also  state  as  to 
each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the  judge  or  judges  before  whom  the 
case  was  litigated;  and 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co^ounsel  and  of 
principal  counsel  for  each  of  the  other  parties. 

Sandra  Lov  et  al  v.  Citv  of  Cleveland  et  al. 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  C74-253 

Date:  Filed  March  25.  1974 

Capsule  Sumniar)':  Title  VII  sex  discrimination  suit  regarding  threatened  layoffs. 

Parties  Represented:  Nine  individual  plaintiffs,  female  Cleveland  Police  officers. 

Nature  of  My  Participation:  Under  the  super\ision  of  the  Women's  Law  Fund,  I 
qualified  as  a  Legal  Intern  under  procedures  of  the  U.S.  District  Court,  N.D.OH.  I  argued 
equitable  relief  in  court  before  Judge  Thomas  Lambros  and  assisted  in  all  aspects  of 
preparation  of  the  case.  The  Cleveland  PoUce  Department  had  segregated  all  women 
officers  into  the  Women's  Department.  Through  a  series  of  ca.ses,  women  were  being 
brought  onto  basic  patrol.  At  that  point  in  the  process,  these  women  officers  were 
threatened  with  lay-off. 

Final  Disposition  of  the  Case:  The  plaintiff  won  equitable  relief. 

(a)  the  date  of  representation: 
January  1  ihrrugh  March  29,  1974 

(b)  the  name  of  the  court: 

U.S.  District  Court.  Noihern  District,  Ohio 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 
Hon.  Thomas  Lambros,  Judge 


127 


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18.       Litigation,  continued: 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Lead  Counsel  Jane  Picker,  Esq.  (21 6)  687-2528 

for  Plaintiffs:  Cleveland  Marshall  College  of  Law 

Cleveland  Stale  University 

Cleveland.  OH  44115 

Counsel  for  Defendants:         Malcolm  Douglas,  Esq.  (216)664-2680 

Cleveland  Law  Department 
City  Hall  -  Lakeside  Avenue 
Cleveland,  OH  44114 


In  Re  .Tason  Brown 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  82JUV  1125 

Date:  August  11,  1982;  November  29, 1982 

Capsule  Summary:  Dependency  adjudication  and  reunification  plan  hearing  regarding 
young  child  of  a  deaf  mother  and  deaf-mute  father.  Their  older  children  had  been 
permanently  removed  from  them,  adopted  out  of  state,  whereabouts  unknown,  for 
reasons  these  indigent  parents  did  not  know.  We  conducted  the  hearings  with  two  kinds 
of  interpreters  since  the  mother  could  use  American  sign  language  but  the  father  could 
only  lip-read. 

Parties  Represented:  Phyllis  Brown,  the  mother  I  eventually  arranged  for  the  Legal 
Aid  Society,  Ralph  Rudd,  to  represent  Jay  Brown,  the  father. 

Nature  of  My  Participation:  My  clients  had  challenging  communication  barriers  and 
were  terrified  of  the  social  service  and  legal  systems  to  whom  they  had  lost  their  older 
children.  Preparing  them  and  the  court  for  a  hearing  had  uncommon  aspects.  They 
could  not  use  telephone,  butTDY  was  arranged. 

Final  Disposition  of  the  Case:  The  court  found  that  the  child  suffered  no  physical  or 
psychological  abuse  or  neglect  and  "that  the  parents  are  blameless."  The  Welfare 
Department  was  "urged  to  use  every  method  at  their  disposal  to  effectively  communicate 
with  the  parents." 

(a)  the  date  of  representation: 

In  court  August  11,  1982  and  November  29, 1982 

(b)  the  name  of  the  court: 

Court  of  Common  Pleas,  Juvenile  Division,  Lake  County,  Ohio 


128 


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18.       Litigation,  continued: 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Hon.  Richard  A.  Hoose.  Judge 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  for  Jay  Brown:  Ralph  Rudd,  Esq.  (814)231-8424 

(now)  500  E.  Marylyn,  D-49 
State  CoUege,  PA  16801 

Guardian  ad  Litem:  James  Fairell,  Esq.  (216)352-0441 

#H-301  New  Market  Hall 
Painesville,  OH  44077 


Marvel  Smith  v.  George  H.  Hardv 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  D65142,  Vol.  897,  Pg.  855-8. 

Date:  March  14,  1983 

Capsule  Summary:  This  post-decree  support  and  visitation  litigation  was  bitter  and 
complex,  involving  long  distance  visitation  and  college  expenses  for  three  children, 
both  of  whose  parents  had  remarried,  relocated  and  assumed  additional  obligations. 

Parties  Represented:  The  out-of-state  father,  George  H.  Hardy 

Nature  of  My  Participation:  Sole  counsel 

Final  Disposition  of  the  Case:  After  two  days  of  trial,  a  tailor-made  full  settlement 
was  reached  and  ordered  into  effect. 

(a)  the  date  of  representation: 

In  trial  February  24  through  February  25,  1983 

(b)  the  name  of  the  court: 

Court  of  Common  Pleas,  Cuyahoga  County,  Domestic  Relations  Division 
the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 
Hon.  Gregory  C.  Fuss,  Referee 


129 


JUDGE   LESLEY    BROOKS    WELLS  Page    17 


18.        Litigation,  continued: 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsei  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  for  Plaintiff:  Larry  S.  Gordon  Esq.  (216)  781-5245 

Maryel  Smith  Berkman,  Gordon,  Murray  &  Palda 

The  Illuminating  Bldg. 

Public  Square 

Cleveland.  OH  44113 


Edward  T.  O'Neill  vs.  David  V.  Raggone.  CWRU  and  the  Andrews  Foundation 

Citations  if  Reported:  None 

Docket  Number:  82-041934-CV 

Date:  April,  1982 

Capsule  Summary:  The  plaintiff.  Dean  of  the  Library  Science  School  at  Case  Western 
Reserve  University  ("CWRU"),  alleged  that  a  conspiracy  between  the  University 
President,  CWRU  and  the  Andrews  Foundation,  had  deprived  him  of  his  position. 

Parties  Represented:  President  David  V.  Raggone  and  CWRU. 

Nature  of  My  Participation:  Associate  counsel  with  Jim  Huston  as  lead  counsel. 

Final  Disposition  of  the  Case:  A  settlement  agreement  was  signed  12/27/82  between 
Plaintiff.  CWRU  and  Present  Raggone;  the  case  was  dismissed  with  prejudice  at 
plaintiffs  costs. 

(a)  the  date  of  representation: 
April  through  December  of  1982 

(b)  the  name  of  the  court: 

Court  of  Common  Pleas,  Cuyahoga  County 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Hon.  Ann  Dyke,  Judge 

(now,  Court  of  Appeals,  8th  Dist.  OH) 


130 


JUDGE   LESLEY    BROOKS    WELLS  Page    18 


18.       Litigation,  continued: 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co^ounsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Lead  Counsel:  James  Huston.  Esq.  (401)847-2316 

(now)  2  Summer  Street 

Newport,  RI  02840 

Counsel  for  Plaintiff:  Todd  M.  Raskin,  Esq.  (216)248-7906 

Mazanec,  Raskin  &  Ryder  Co.  LPA 
34305  Solon  Road 
Solon.  OH  44139 

Counsel  for  Defendant  Charles  F.  Clarke  Esq.  (216)479-8551 

The  Andrews  Foundation:      Squire  Sanders  &  Dempsey 

4900  Society  Center 

Cleveland.  OH  44114-1304 


Stenger  Realty  Co.  v.  .lohn  P.  Cannell.  Robert  S.  Wedwaldt.  Susan  L  Wedwaldt 
and  Law  rence  S.  Supelak 

Citations  if  Reported:  None 

Docket  Number:  Case  Nos.  CV  20279  and  CV  33399 

Date:  May  12.  1982 

Capsule  Summary:  These  consolidated  cases  arose  out  of  divorce  proceedings  and 
involved  real  estate  foreclosure  and  specific  performance  actions  between  hostile 
ex-spouses,  a  mortgagee  bank  and  real  estate  brokers.  After  a  jury  was  impaneled  in  the 
consolidated  cases,  these  cases  were  resolved  by  an  in-court  settlement. 

Parties  Represented:  Defendant  -  Third  Party  Plaintiffs,  Wedwaldts 

Nature  of  My  Participation:  Lengthy  negotiations  with  parties  on  the  issues  which  led 
to  the  specific  performance  action  failed.  As  sole  counsel  for  the  Wedwaldts.  who  lived  in 
Florida.  I  prepared  the  case  for  uial  and  served  as  trial  counsel  for  them. 

Final  Disposition  of  the  Case:  In  court  settlement  of  all  issues,  cases  dismissed  with 
prejudice  at  plantiffs  cost 

(a)  the  date  of  representation: 

November  20th.  1980.  through  May  12th.  1982 

(b)  the  name  of  the  court: 

Court  of  Common  Pleas.  Cuyahoga  County 


131 


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18.       Litigation,  continued: 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Hon.  Burt  Griffin,  Judge 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  For  Plaintiff:  Michael  Molnar,  Esq.  (2161)252-3502 

4088  W.  229th  St. 
Fairview  Park,  OH  44126 

Counsel  For  Defendant  Richard  Brown.  Esq.  (216)696-5200 

Supelak:  Roudebush,  Brown  &  Ulrich 

635  NCB  Building 

Cleveland.  OH  441 14 


Harvey  M.  Rodman  v.  Annette  Rodman 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  DR  124439  and  CA  45457 

Date:  Hearing  April  15,  1982;  Judgment,  May  11,  1982 

Capsule  Summary:  This  was  a  bitterly  contested  post-divorce  decree  proceeding 
involving  fraud,  misrepresentation,  perjury,  and  support  obligations,  followed  by  an 
appeal.  The  Plaintiff,  an  internationally-known  scientist,  through  his  counsel,  stone- 
walled and  refused  all  normal  cooperation  throughout  discovery.  After  judgment 
following  trial.  Plaintiff  appealed,  to  no  avail. 

Parties  Represented:  Defendant  Annette  Rodman 

Nature  of  My  Partidpation:  I  represented  a  divorced  woman  in  efforts  to  enforce  her 
divorce  decree  and  to  modify  some  of  its  provisions.  Eventually,  after  an  uncommonly 
hostile  series  of  pretrial  and  trial  hearings,  the  Court  granted  her  relief. 

Final  Disposition  of  the  Case:  Judgment  for  Appellee  Annette  Rodman. 

(a)  the  date  of  representation: 

April  1981  through  May  of  1982 


132 


JUDGE   LESLEY   BROOKS    WELLS  Page    20 


18.       Litigation,  continued: 

(b)  the  name  of  the  court: 

Court  of  Common  Pleas,  Domestic  Relations  Division,  Cuyahoga  County  and  Court  of 
Appeals,  Eighth  Appellate  District 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Hon.  Samuel  Asad,  Trial  Referee;  Hon.  Herbert  R.  Whiting,  Judge 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  For  Plaintiff:  George  Braun,  Esq..  deceased 


Susan  M.  Corvo  v.  Cuvahoga  County  et  al 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  C82-3679 

Date:  Filed  December  22,  1982 

Capsule  Summary:  The  female  Deputy  Director  of  Cuyahoga  County's  equal 
employment  opportunity  office  was  passed  over  for  a  promotion  to  Director  of  the  county 
equal  employment  opportunity  office.  No  vacancy  was  posted.  When  a  male  was  hired 
for  the  position  she  filed  a  Title  VII  sex  discrimination  suit  seeking  injunctive  and 
declaratory  relief,  promotion,  back  pay,  remedies  for  retaliation,  fees  and  costs.  Because 
of  her  expertise,  she  participated  actively  in  statistical  research  prior  to  and  in  preparation 
for  litigation. 

Parties  Represented:  Plaintiff  Susan  M.  Corvo 

Nature  of  My  Participation:  Until  I  was  appointed  to  the  Common  Pleas  Court  in 
March,  1983, 1  handled  all  aspects  of  this  case.  We  began  with  efforts  to  resolve  the 
case  through  informal  procedures  and  negotiations;  then  filed  suit  when  necessary. 
Discovery  and  pre-trial  proceedings  went  well  and  negotiations  continued  with  lean 
trial  preparation  on  both  sides,  sparing  unnecessary  expense. 

Final  Disposition  of  the  Case:  The  case  was  settled  on  September  6,  1983  by  James  I. 
Huston,  Esq.  who  succeeded  me  as  counsel  when  I  was  appointed  Common  Pleas  Judge. 
Plaintiff  received  back  pay,  transfer  to  an  agreed  position  and  attorney's  fees. 

(a)  the  date  of  representation: 

December  22,  1982  through  March.  1983 

(b)  the  name  of  the  court: 

U.S.  District  Court,  Northern  District  of  Ohio 


133 


JUDGE   LESLEY    BROOKS    WELLS  Page    21 


18.        Litigation,  continued: 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Hon.  John  Manos,  Judge 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  For  Defendant:         Patrick  J.  Murphy,  Esq.  (21 6)  443-779 1 

Asst.  County  Prosecutor 
Justice  Center 
Cleveland,  OH  44113 


State  ex  rel  Cleveland  Heights  Municipal  Court  v.  Marjorie  Wright.  Mavor.  et  al 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  76-1073,  Supreme  Court  of  Ohio 

Date:  Filed  September  2 1 ,  1 976 

Capsule  Summary:  The  original  Action  in  Mandamus  was  filed  in  the  Ohio  Supreme 
Court  when  the  City  of  Cleveland  Heights,  through  action  of  its  Council,  unilaterally 
transferred  to  the  Cleveland  Heights  Municipal  Court,  the  Violations  Bureau,  without 
employees  and  without  operating  funds.  The  Bureau  had  been  operated  by  the  City  with 
seven  employees  at  a  cost  of  half  a  million  dollars  per  year.  Simultaneously,  the  city 
removed  the  police  officer  assigned  as  Court  Bailiff.  These  actions,  taken  after  a  new 
judge  defeated  her  twenty-year  predecessor,  left  the  busiest  municipal  court  in  the  State 
(byYilings  per  judge)  unable  to  meet  payroll  through  the  year. 

Parties  Represented:  Cleveland  Heights  Municipal  Court  and  Judge  Sara  Hunter, 
Plaintiff-Realtors 

Nature  of  My  Participation:  I  was  sole  counsel  to  the  Court  originally  as  we  attempted 
to  negotiate  a  resolution  with  the  City  to  prevent  a  shutdown  of  the  Court.  1  brought  on 
as  co-counsel  an  experienced  litigator  and  negotiator,  Bemie  Direnfeld,  to  assist  with  a 
negotiated  resolution.  We  made  no  progress  and  so  filed  an  Action  in  Mandamus  in  the 
Ohio  Supreme  Court  as  we  continued  negotiating.  Some  progress  was  made.  This  year 
the  Judge  will  retire  after  eighteen  years  of  service. 

Final  Disposition  of  the  Case:  Dismissed. 

(a)  the  date  of  representation: 

Filed  November  21.  1976 

(b)  the  name  of  the  court: 
The  Supreme  Court  of  Ohio 


134 


JUDGE  LESLEY   BROOKS    WELLS  Page    22 


18.       Litigation,  continued: 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Justices  of  the  Ohio  Supreme  Court 


(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Co-Counsel:  Bernard  E>irenfeld.  Esq..  deceased 

Counsel  for  Defendants:         Jules  N.  Koach.  Esq.  (216)  241-2500 

Leader  Building 
Cleveland.  OH  44114 

For  State  of  Ohio:  William  J.  Brown,  Esq.  (216)  787-3030 

Ohio  Attorney  General 
Stale  Office  Tower 
Cleveland.  OH  44114 


Arlene  M.  Berke.  et  al  v.  Sportsmen's  Club.  Inc.  et  al 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  76  CI  F1681;  Ohio  Civil  Rights  Commission 
Complaint  No.  2823 

Date:  Case  filed  May  12. 1976;  Complaint  filed  February  17, 1987 

Capsule  Summary:  Breach  of  contract  and  sex  discrimination  in  public  accommodations 
suit  by  women  who  paid  defendants  for  an  advertised  trip  to  the  Bahamas  for  themselves 
and  their  spouses.  Three  days  before  the  scheduled  flight,  plaintiffs  were  notified  they 
could  not  participate  because  it  was  a  "Stag  Junket".  Nothing  in  the  newspaper  ads  had 
mentioned  exclusion  of  women  or  of  married  women. 

Parties  Represented:  Plaintiffs  Arlene  M.  Burke.  Sally  Roseman.  and  Judith  Shamis. 

Nature  of  My  Participation:  I  was  lead  Counsel  and  tried  with  case  with  my  partner. 
Beverly  Moft'et,  Esq.  as  co-counsel.  We  also  represented  the  plaintiffs  in  the  Ohio  Civil 
Rights  Commission  proceedings  where  we  obtained  a  Conciliation  and  Consent  Order. 

Final  Disposition  of  the  Case:  Judgment  for  plaintiffs  with  compensatory  and  punitive 
damages  plus  attorney  fees;  Conciliation  Agreement  and  Consent  Order  in  Plaintiff's 
favor  in  Ohio  Rights  Commission  action. 

(a)  the  date  of  representation: 

May  of  1976  through  March  30,  1977 


135 

JUDGE  LESLEY   BROOKS    WELLS  Page    23 


18.      LitigatiQni  coiitinugd: 

(b)  the  name  of  the  court: 

The  Shaker  Heights  Municipal  Court,  Ohio,  and  the  Ohio  Civil  Rights  Commission 
the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 

Hon.  Manuel  M.  Rocker,  Judge 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  for  Defendant  Leonard  P.  Gilbert,  Esq.  (no  telephone  number 

1 366  Hanna  Building  currently  listed) 

Cleveland.  OH  44115 

Co-Counsel:  Hon.  Beverly  Moffet,  Chief  Referee  (216)  443-8836 

One  Lakeside  Court  House 
Cleveland,  OH  44113 


Deane  C.  .Toines  v.  Benjamin  F.  Bailar.  Postmaster  General  et  al 

Citations  if  Reported:  None 

Docket  Number:  Case  No.  C76-136 

Date:  Filed  February  10, 1976 

Capsule  Summary:  A  fifty-eight  year  old  female  customer  service  representative  with 
eighteen  years  of  service  and  outstanding  evaluations  sought  promotion  to  a  position 
level  held  by  few  women  in  the  U.S.  Postal  Service:  Customer  Service  Representative, 
Senior.  A  male  who  was  promoted  had  rated  lower  on  all  announced  criteria.  USPS  failed 
to  process  plaintiffs  administrative  remedies.  She  brought  suit  for  injunctive  and 
declaratory  relief,  promotion,  back  pay,  relief  from  retaliation,  fees  and  costs. 

Parties  Represented:  Plaintiff  Deane  Joines 

Nature  of  My  Participation:  As  co-counsel  with  my  partner,  Beverly  Moffet,  Esq.,  I 
was  responsible  for  conducting  hearings,  depositions  and  trial.  We  both  did  research  and 
jointly  prepared  the  case,  each  participating  in  phases  of  discovery  and  settlement 
negotiations.  Due  to  the  vast  amount  of  paperwork  maintained  by  the  USPS,  discovery 
in  preparation  for  suit  was  complicated. 

Final  Disposition  of  the  Case:  Full  settlement  on  September  20. 1977 

(a)  the  date  of  representation: 

Case  filed  February  10, 1976,  representation  through  September  20, 1977 


136 

JUDGE   LESLEY    BROOKS    WELLS  Page    24 

18.       IJtigation.  continued: 

(b)  the  name  of  the  court: 

U.S.  District  Court,  Northern  District  of  Ohio 

the  name  of  the  judge  or  judges  before  whom  the  case  was  litigated: 
Hon.  Frank  J.  Battisti,  Judge 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties: 

Counsel  for  Defendant:  Richard  Froelke.  Esq.  (216)886-3031 

Regional  Labor  Counsel,  USPS 
433  Van  Buren  Street,  Room  901 
Chicago,  IL  60699 

Joseph  A.  Cipollone,  Esq.  (216)  522-4336 

Assl.  U.S.  Attorney 
400  U.S.  Court  House 
Cleveland,  OH  44114 


19.        Legal  Activities:  Describe  the  most  significant  legal  activities  you  have  pursued, 
including  significant  litigation  which  didn't  progress  to  trial  or  legal  matters  that 
did  not  involve  litigation.  Describe  the  nature  of  your  participation  in  this  question, 
please  omit  any  information  protected  by  the  attorney-client  privilege  (unless  the 
privilege  has  been  waived.) 

As  Attorney/Director  of  the  ABAR  in  Civil  Rights  Litigation  Support  Center,  with 
staff  1  trained  and  provided  federal  litigation  resources  to  lawyers  in  fourteen  (14)  states 
and  five  (5)  Federal  Circuits. 

When  time  permits,  1  lecture  and  teach  law  and  urban  policy  as  an  adjunct  assistant 
professor,  pro  bono.  In  the  College  of  Urban  Studies,  I  bring  law  to  graduate  students 
in  economics,  sociology,  psychology,  business,  environmental  science  and  urban 
planning. 

When  I  was  in  general  civil  practice,  much  of  my  work  involved  matters  outside 
litigation  such  as  work  for  Judson  Park  Retirement  Center,  small  business,  tax  and  estate 
planning  matters.  We  represented  plaintiffs  and  defendants. 


137 


JUDGE   LESLEY    BROOKS    WELLS  Page    25 


Senate  Judiciary  Committee  Questiomiaire 
n.  Financial  Data  and  Conflict  of  Interest  (Public) 

List  sources,  amounts  and  dates  of  all  anb'dpated  receipts  from  deferred  income 
arrangements,  stock,  options,  uncompleted  contracts  and  other  future  benefits 
which  you  expect  to  derive  from  previous  business  relationships,  professional 
services,  f>''m  memberships,  former  employers,  clients  and  customers: 

•  PERS,  Ohio  public  employee  vested  retirement  benefits  of  $64,000:  eligible  to  receive 
account  balance  disbursements  on  resignation  or  retirement. 

Please  describe  arrangements  you  have  made  to  be  compensated  in  the  future  for 
any  financial  or  business  interest: 

None 


Explain  how  you  will  resolve  any  potential  conflict-of-interest,  including  the 
procedure  you  will  follow  in  determining  these  areas  of  concern.  Identify  the 
categories  of  litigation  and  financial  arrangements  that  are  likely  to  present 
potential  conflict-of-interest  during  your  initial  service  in  the  position  to  which  you 
have  been  nominated. 

I  know  of  no  present  conflict  situations.  In  my  ten  plus  years  as  a  state  trial  judge,  staff 
and  1  have  scanned  the  docket  regularly  for  potential  conflicts.  For  example,  for  many 
years  no  one  from  my  former  firm  appeared  before  me  and  we  continue  to  disclose  the 
prior  association  immediately  to  all  parties.  I  have  no  stocks,  investments  or  business 
interests.  Full  disclosure,  divestment,  and  recusal  could  be  proper  if  conflict  situations 
occur.  I  follow  the  Code  of  Judicial  conduct 


Do  you  have  any  plans,  commitments,  or  agreements  to  pursue  outside  employment, 
with  or  without  compensation,  during  your  service  with  the  court.  If  so,  explain: 

No 


List  sources  and  amounts  of  all  income  received  during  the  calendar  year  preceding 
your  nomination  and  for  the  current  calendar  year,  including  all  salaries,  fees, 
dividends,  interest,  gifts,  rents,  royalties,  patents,  honoraria,  and  other  items 
exceeding  $500  or  more: 


138 


FINANCIAL  DISCLOSURE  REPORT 


A-A^e  Ai- 


Raport  R*qulrad   by  UM  lUilca 
RaCora  Act  of    1969,    Pub.    L.    Vo. 
101-194.      Nov«Bb«r    JO,    1989 
(i    U.S.C.A.    Xpp.    6,    SSlOl-1131 


1.   p«r»on  Raportlng   ILaai  n«»»,    Jlrat.   »ld<ll«  Initial) 
WELLS,    LESLEY   BROOKS 


4.   Tltia      (Artlcla   III    Judgaa    Indlcata  actlva  or 

•aolor   atatua;    Maglatxata   Judgaa    indicata 
fuil-   or   part-tlaa) 

Nominee,  Judge,  U.S.  District  Court, 
Northern  District  of  Ohio 


7.    Cbaabara   or  OfClca  Mdxaaa 

Judge  Lesley  Brooks  Wells 
Justice  Center,  16-B 
1200  Ontario  Street 
Cleveland.  Ohio   4A113 


2.  Court  or  Organization 

Nominee,  U.S.  District  Court, 
Northern  District  of  Ohio 


3.  Data  of  Raport 

11-23-93 


S.  Raport  Typa  <chack  approprlata  typa) 
X  HOBlnatlon.  Data  11-1 9-93 

Initial   Ajuiual   Final 


6.  RaportlBg  Parlod 

1-1-92  to 
10-31-93 


8.  On  tba  baala  of  tha  InfomatloD  contalnad  lo  tula  R«port,  It 
la,  lo  my  oplDloo.  lo  coapllaaca  wltb  appllcabla  lava  and 
ragulatlona  


Ravlawlog  Officer  Slgnatura 


IMPORTANT    NOTES:      The   instructions     accompanying     this  form    must   be  followed.    Complete  all  parts, 
checking  the  NONE  box  for  each  section  where  you  have  no  reportable  iorormatJon.    Sign    on  last  page. 


I.     POSITIONS.     (Reporting  individual  only,  see  pp.  7-8  of  Instructioos.) 

POSITION  NAME  OF  ORGANIZATION/ENTITY 

NONE        (No  raportabla   poaltlona) 

Trustee                                                                   Chatham  College,    Pittsburgh,    P.4 
Counselor,    Harold    Burton   Chaster  Anerican   Inns   of    Court,    No.    91 


Trustee    (until   2-92) 


Rose   Marv   Center   for   Children 


Trustee    (until    2-29-92) 


Miami   University,    Oxford,    OH 


II.     AGREEMENTS.     (Reporting  indis-idual  only,  see  p.  8-9  of  Instruciiocs.) 
DATE  PARTIES  AND  TER.V1S 


D 


NONE        [Ho   reportable  agreeoenta) 


to   be   determined  PERS,    Public   Employee   Retirement   System  of   Ohio,    eligible    to   receive 

account   balance   disbursement 


III,     NON-INVESTMENT  INCOME.     (Reponing  individual  and  spouse;  see  pp.  9-12  of  Insinictions.) 

DATE  SOURCE  AND  TYPE  GROSS  INCOME 

(Honorana  only) 

NONE       (Ho  reportable  non-lnveataeat   Incooe) 

1 

1/1/92  -  12/31/92    Ohio:   Judicial  salary 


\/l/92  -  12/31/92    Cuyahoga  County,  Ohio:   Judicial  salary 


1/1/93  -  10/29/93    Ohio:   Judicial  salary 


1/1/93  -  10/22/93    Cuyahoga  County,  Ohio:   Judicial  salary 


(youn,  not  spouse's) 


$  72,651.5':. 

-  13,407.98 

5  60,481.66 

5  12,352.12 

$ 


139 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


»■•■  of   Person  fUporclng 

WELLS,  LESLEY  BROOKS 


DmXM  of   RapOTL 

11-23-93 


IV.    REIMBURSEMENTS  and  GIFTS  -  transportation,  lodging,  food,  entertainment. 


D 


(Includes  those  to  spouse  and  dependent  children:  ose  the  parentheticals  *(S)*  and  '(DC)*  to  Indicate  reportable 
reimbursements  and  gifts  received  by  spouse  and  dependent  children,  respectively.    Sec  pp.13-15  of  Instmctioiu.) 

SOURCE 
NONE       (No  aucb  raportablo 

n7a 


DESCRIPTION 
or  gifts} 


V.     OTHER  GIFTS,      (includes  those  to  spouse  and  dependent  children:  use  the  parentheticab  '(S)'  and  "(DC)'  to 


lepei 
indicate  other  gifts  received  by~  spouse  and  dependent  children,  respectively.  Sec  pp.15-16  of  Instnicttons.) 


n 


SOURCE 


DESCRIPTION 


VALUE 


NONE 

X/A 


(No    lucb    raporxabla  qttXM) 


VI.      LIABILITIES,      (includes  those  of  spouse  and  dependent  chUdren;  Indicate  where  applicable,  person  responsible 


for  liability  by  using  the  parenthetical  "(S)"  for  separate  liability  of  spouse,  "(J)"  for  joint  liability  of  reporting 
individual  ana  spouse,  and  '(DC)'  for  liabUit\  of  a  dependent  child.    See  pp.16-18  oflnstructioDS.) 


H 


CREDITOR 


NONE       (Ho  raporxabl*  llabllltloa) 


DESCRIPTION 


VALUE    CODE* 


•    VU.DE    CODES: 


J  -  Sli.OOO  or  !■•• 

II  •   9250,001   to  SSOO.OOO 


K  -   $13,001  to  SSO.OOO  L  •  $S0,O01   to  $100,000         H  •  $100,001  to  $390,000 

o  •  SS0O,001  to  SI, 000,000       P  •  Horo  than  $1,000,000 


140 


P^ 


*T 


^i 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


Naa*  oC   ParaoD   Raporcl&g 

WELLS,  LESLEY  BROOKS 


Dare  of  Raport 

11-23-93 


VII.    INVESTMENTS  and  TRUSTS  --  income,  value,  transactions,    (includes  those  of  spouse 

and  dependent  children;  see  pp.  18-27  of  Instructions.) 


paacriptloQ  oC  A«s«t» 

IndUiM,   xtuir*  •triiU<:«l>l«,   o>™«r  of 

B. 

lacona 

durlOQ 

rapoping 

pariod 

C. 

Oroaa   valoa 

at  end  of 

raportlng 

parlod 

0. 
Traaaactlooa  during  raportlng  parlod 

ing   Indlviaual   cad    tpouM,    "(31      tor 
••p«z>t<  o«ii«r.lilp  By   •poii.«,    '(DC)" 
for  owii«£»lUp  oy  a«pao<3«Dr  child. 

Plac*   *(X)*   mVfL  •«cb  u»«t. 
•xaapc  tna  pTleLr.dlsclosur*. 

(1) 

Coda' 
(»-B) 

12) 

(iT. 

aiv., 

raat  p£ 

<1) 

Coda' 
(J-P) 

(2) 

Valua 

Nathod^ 

Coda-" 

(O-V) 

iyp.      I. 

11  not  ttxttspt   froB  (il«clo»ur«                 1 

b4;;'uu. 

maxgvr, 

radwsp- 

tlonT 

iiia: 

Hontii. 

Day 

(3) 

Valoa^ 
coda' 
(J-P) 

Cain, 
coda' 
(»-8) 

(It  prlv»t« 
tru)  lection] 

NONE     (Ro  nporubla 
locoa*.   aaaau,   or 

tranaact-lona  1 

PERS  of   Ohio 

None 

L 

T 

None 

2 

3 

4 

5 

6 

7 

a 

9 

10 

11 

12 

13 

14 

IS 

16 

n 

la 

19 

20 

1    locon/Cala  Co<l»ai         l-Sl.OOO   or    l«»a                       B-Sl.OOl   to   J2,500                       C-S2,501    to    5,000                         [>-S5,001    to   S15.000 
tumm  ml.    Bl    4    D41         E-S14.001    to    S50.000             F-$S0,001    to   S'.OO.OOO                C-S100,00'.    to    5'.,0::.P00        9-Hora    than    51.000.000 

3  Valua  Coa«a.                      J-Sl5,40l  or    laaa                   K-S15,001   to  SSO.OOO                 L-S40,0(ll   to  SlilCOOO              >f  5100,001   to  5250,000 
(Saa  Col.    CI    4   031         11-5250.001    to    5500.000        05500,001    to   51^000,000        P-Mora    t^an    51.000,000 

3  Valoa  Hatliod  Codaat      Q-Appralaal                                 Jt«Coat    (raal  aatata  oiUy)      3-Aaaaa«Bant                                  T^Caah/MjLTtot 
{8«a  Col.  C3)                  U-Book  Vain*                           v-othar                                          w«latlsatad 

Pcu^..»*1 


•  FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


VIII.    ADDITIONAL  INFORMATION  or  EXPLANATIONS,    (indicate  pan  of  Re^) 


NONE 


IX.    CERTIFICATION. 

In  comoliano:  wih  the  provisions  of  2S  U.S.C.  §  455  and  of  Adnsory  Opinion  No.  57  of  the  Advisory  Committee  on 
Judicial  Acii\'iues.  and  to  the  best  ol  my  knowledge  a;  the  lime  after  reasonable  inquiry,  1  did  not  perform  any  adjudicatory 
function  in  anv  litigation  during  the  period  covered  by  this  report  in  which  I,  my  spouse,  or  my  minor  or  dependent  children 
had  a  finanaal  interest,  as  defined  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigation. 

I  ccnih  that  all  information  given  above  (including  information  pertaining  to  my  spouse  and  tninor  or  dependent  children, 
if  anv)  lb  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  belief,  and  that  any  information  not  reported  was 
withheld  because  it  met  applicable  suiutory  provisions  permitting  non-disclosure. 


I  funher  cenifv'  that  earned  income  from  outside  employment  and  honoraria  and  the  acceptance  of  gifts  which  have  been 
reported  are  in  compliance  with  the  provisions  of  5  U-S.CA.  app.  7.  §  501  et.  sea.,  5  U.S.C.  §  7353  and  Judicial  Conference 
regulations. 


■o-Ai   fTeils,    Juage 


Date 


U-23-93 


Signature 

^Lesley   Bro-ot^s 

NOTE;      ANY1NDIV©i^AL  WHO  KNOWINGLY  AND  WHfULLY  FALSIFIES  OR  FAILS  TO  FILE  THIS  REPORT 
MAY  BE  SUBJECT  TO  CrVIL^V^tT CRIMINAL  SANCTIONS  (5  U.S.CA.  APP.  6,  §  104,  AND  IS  U.S.C  §  1001.) 


FILING  INSTRUCTIONS: 


Mail  signed  original  and  3  additional  copies  to: 


Judicial  Ethics  Comminee 
Administrative  Office  of  the 

United  Slates  Couns 
Washington.  DC   20544 


142 


^4<,   ZD 


Judge  Lesley  Brooks  Wells  Financial  Statement 
Net  Worth 

October  31,  1993 

Provide  a  complete,  currenl  financial  net  worth  statement  which  itemizes  in  detail  all  assets 
(including  bank  accounts,  real  estate,  securities,  trusts,  investments,  and  other  financial  holdings) 
all  liabilities  (including  debts,  mortgages,  loans,  and  other  financial  obligations)  of  yourself,  your 
spouse,  and  other  immediate  members  of  your  household. 


ASSETS 

LIABILITIES 

Cash  on  hand  and  in  banks 

$2,500.00 

Notes  payable  to  banks  -  secured 

$0  00 

US  Govern  securities  -  add  schedule 

$0.00 

Notes  payable  to  banks  -  unsecured 

$0.00 

Listed  secunues  -  add  schedule 

$0.00 

Notes  payable  to  relauves 

SO  00 

Unhsted  secunues  -  add  schedule 

$0  00 

Notes  payable  to  others 

$0.00 

Accounts  and  notes  receivable: 

SO.OO 

Accounts  and  bills  due 

$0.00 

Due  from  relatives  and  freinds 

Upaid  income  tax 

$0  00 

Due  from  others 

Other  unpaid  lax  and  interest 

$0.00 

Doubtful  (judgement) 

(S.<i.0O0  0O) 

Real  estate  mortgages  payble 

Real  esute  owned  -  add  schedule* 

$14.'i.(XX)0O 

•  -add  schedule      (Thud  Federal  S&L) 

$103,000.00 

Real  esute  mongaees  receivable 

SO  00 

Chattel  mortgages  and  other  hens  payable 

Autos  and  otier  personal  property 

ss.ooooo 

Other  Debts  -  itemize 

Cash  value  -  life  insurance 

SO.OO 

Other  assets  -  itemize 

Star  VISA 

$5.000  00 

Boats 

S5.000.00 

Household  Eoods 

$35.000  00 

Jewelrv 

$4,000.00 

TOTAL  LIABILITIES 
NET  WORTH 

TOTAL  LIABILITIES  AND 
NET  WORTH 

$108,000.00 

Vested  pension  PERS 

$64,000.00 

S160,500  00 

TOTAI.  ASSETS 

$268.500  00 

S268.500.00 

CONTINGENT  LIABILITIES 

GENERAL  LNFORAIATION 

.An  endorser,  comaker  or  guarantor 

$0.00 

Are  any  assets  pledged''  (Add  schedule) 

NO 

(Jn  leases  or  contracts 

SO.OO 

Are  you  defendant  in  any  suits  or 

Legal  Claims 

$0.00 

leeal  actions? 

NO 

Provision  for  Federal  Income  Ta.x 

$0.00 

Have  you  ever  taken  bankruptcy? 

NO 

Other  special  debt 

SO.OO 

•Residence:  16926  East  Park  Drive,  Qeveland,  OH  44119 


143 


JUDGE  LESLEY   BROOKS    WELLS  Page    31 


6.         Have  you  ever  held  a  position  or  played  a  role  in  a  political  campaign?: 

Yes. 

If  so,  please  identify  the  particulars  of  the  campaign,  including  the  candidate,  dates 
of  the  campaign,  your  title  and  responsibilities: 

•  Campaign  Manager,  Mary  O.  Boyle  for  State  Representative,  1978 

•  Various  campaigns  in  Ohio,  1974  -  1983 

•  Candidate:  Judge,  Court  of  Common  Pleas.  Cuyahoga  County,  elected  1984, 1986, 1988 

•  Justice,  Ohio  Supreme  Court,  unsuccessful  candidate,  1992  Primary 


144 


JUDGE   LESLEY    BROOKS    WELLS  Page    32 


Senate  Judiciary  Committee  Questionnaire 


III.  General  (Public) 

1.         An  ethical  consideration  under  the  Canon  2  of  the  American  Bar  Association's  Code 
of  Professional  Responsibility  calls  for  "every  lawyer,  regardless  of  professional 
prominence  or  professional  workload,  to  find  some  time  to  participate  in  serving  the 
disadvantaged."  Describe  what  you  have  done  to  fulfill  these  responsibilities,  listing 
specific  instances  and  the  amount  of  time  devoted  to  each.: 

At  present,  I  serve  four  hours  every  weekend  on  an  anonymous  mental  health  crisis 
intervention  hotline  for  the  Free  Medical  Clinic.  Occasionally  I  teach  law  and  urban 
policy,  pro  bono,  as  an  adjunct  assistant  professor  at  Cleveland  State  University. 

I  served  as  an  officer  of  the  Cleveland  Legal  Aid  Society  from  law  school  graduation 
until  I  completed  my  service  as  President. 

In  1981  -  82,  as  Vice  Chair  of  the  Reorganization  Committee  of  the  Cleveland  Bar 
Association,  I  was  responsible  with  others  for  conceiving  and  implementing  a 
pro  bono  program,  CASE,  for  participation  by  all  Cleveland  area  attorneys.  The  Bar 
Association's  Statement  of  Commitment,  which  I  drafted,  is  as  follows: 

"Affirming  our  profession's  commitment  to  equal  justice  for  all  persons  and  the 
individual  responsibility  of  lawyers  as  officers  of  the  Court,  the  Bar  Association  of 
Greater  Cleveland  asks  each  lawyer  to  examine  and  act  upon  his  or  her  individual 
professional  obligation  to  provide  legal  services  to  those  unable  to  afford  them. 
Join  with  your  fellow  lawyers  to  ensure  that  no  one,  for  lack  of  funds,  is  denied 
right  or  justice." 

For  this  work  I  received  the  Merit  Service  Award  of  the  Cleveland  Bar  Association. 

For  three  years,  1984-1987, 1  traveled  throughout  Ohio  as  Chair  of  the  Governor's  Task 
Force  on  Family  Violence.  The  Task  Force  focused  on  child  abuse,  elder  abuse,  and 
domestic  violence.  We  made  fifty  four  (54)  recommendations  to  the  Governor, 
Legislature,  state  and  local  agencies.  Fifty  three  (53)  of  our  recommendations  were 
implemented. 

I  have  served  the  disadvantaged  in  numerous  organizations.  I  served  as  Trustee  of  the 
Urban  League  of  Cleveland,  1989  -  1990  and  of  Rose  Mary  Center  from  1986  -  1990. 
Rose  Mary  Center  is  a  residential  treatment  and  education  facility  for  children  aged 
four  to  sixteen  who  are  dual-diagnosed  with  multiple  physical  and  learning  disabilities. 
Home  care  is  not  available  to  these  children. 

As  a  member  of  Case  Western  Reserve  University  School  of  Medicine's  Center  for 
Biomedical  Ethics  Advisory  Board,  1986  -  present,  1  serve  those  disadvantaged  by 
medical  catastrophe  or  crisis.  This  is  an  outgrowth  of  prior  volunteer  work  in  inner 
city  emergency  rooms. 


145 


JUDGE   LESLEY    BROOKS    WELLS  Page    33 


1.  Serving  the  disadvantaged,  continued: 

Mental  health  patients  caught  in  the  misdemeanor  criminal  justice  system  pose  special 
problems  which  I  worked  to  resolve  through  the  Federation  for  Community  Planning  and 
the  Cleveland  Bar  Association.  I  served  on  the  Citizen's  Advisory  Board  of  the  Cleveland 
Psychiatric  Institute.  Through  the  Legal  Aid  Society,  I  served  as  a  volunteer  advocate 
inside  one  of  our  state  mental  hospit^,  Fairtiill  Psychiatric  Institute. 

I  have  served  as  a  board  member  of  several  organizations  designed  to  address 
disadvantages  specific  to  women:  Women's  Equity  Planning  Project,  WomenSpace, 
United  Way  Task  Force  on  Women.  I  was  Chair  of  the  Legal  Caucus  of  the  National 
Women's  Political  Caucus  as  well  as  the  state  and  local  Women's  caucuses. 

2.  The  American  Bar  Association's  Commentary  to  its  Code  of  Judicial  Conduct  states 
that  it  is  inappropriate  for  a  judge  to  hold  membership  in  any  organization  that 
invidiously  discriminates  on  the  basis  of  race,  sex  or  religion.  Do  you  currently 
belong,  or  have  belonged  to  any  organization  wlJch  discriminates  -  through  either 
formal  or  membership  requirements  or  the  pract.cal  implementation  of 
membership  policies?  If  so,  list,  with  dates  of  membership.  What  you  have  one  to 
try  to  change  these  policies?: 

Brownie  and  Girl  Scouts  in  the  1940's. 


Is  there  a  selection  commission  in  your  jurisdiction  to  recommend  candidates  for 
nomination  to  the  federal  courts?: 

No 

Please  describe  your  experience  in  the  entire  judidal  selection  process,  from 
beginning  to  end  (including  the  circumstance  which  led  to  your  nomination  and 
interviews  in  which  you  participated): 

Initially  1  applied  by  letter.  Curriculum  Vitae  and  a  list  of  two  dozen  references;  people 
who  know  me  well  from  diverse  times  and  perspectives.  Senator  Metzenbaum  and 
Senator  Glenn  each  interviewed  me,  separately,  twice.  I  completed  the  comprehensive 
judicial  application  provided  for  me  by  Senator  Metzenbaum  and  furnished  both  Senate 
offices  with  a  full  response.  A  team  of  four,  two  staff  members  from  each  Senator's 
office,  interviewed  me  on  a  wide  range  of  legal  and  professional  topics. 

On  May  7, 1993,  the  Senators  recommended  to  President  Clinton  that  he  appoint  me 
to  a  vacancy  on  the  Federal  District  Court,  Northern  District  of  Ohio. 

The  office  of  White  House  Counsel  provided  me  forms,  waivers  and  fingerprint  charts 
for  information  relevant  to  White  House,  Justice  Department.  ABA,  FBf  and  Senate 
review  of  my  qualifications,  background  and  experience.  All  requested  information  was 
provided  by  me  to  the  White  House. 


146 


JUDGE   LESLEY   BROOKS    WELLS  Page    34 


3.  Judicial  selection  process,  continued: 

I  was  contacted  and  interviewed  by  representatives  of  the  Justice  Depanment,  FBI 
and  ABA  in  Washington  and  Cleveland.  Additional  information  was  provided  them  as 
requested. 

On  November  19. 1993  I  was  advised  by  Bernard  Nussbaum,  Esq.,  Counsel  to  The 
President,  that  President  Clinton  had  nominated  me  to  be  U.S.  Judge,  Northern  District  of 
Ohio  and  that  he  had  sent  my  name  to  the  U.S.  Senate  for  confirmation  proceedings. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a  judicial  nonunee  discussed 
with  you  any  specific  case,  legal  issue  or  question  in  a  manner  that  could  be 
reasonably  interpreted  as  asking  how  you  would  rule  on  such  case,  issue  or 
question: 

No 

5.  Please  discuss  your  views  on  the  following  criticism  involving  "judicial  activism:" 

The  role  of  the  Federal  judiciary  within  the  Federal  government,  and  with  society 
generally,  has  become  the  subject  of  increasing  controversy  in  recent  years.  It  has 
become  the  target  of  both  popular  and  academic  criticism  that  alleges  that  the 
1  judicial  branch  has  usurped  many  of  the  prerogatives  of  other  branches  and  levels 

of  government. 

Some  of  the  characteristics  of  this  "judicial  activism"  have  been  said  to  include: 

a.  A  tendency  by  the  judiciary  toward  problem-solution  rather  than  grievance- 
resolution: 

b.  A  tendency  by  the  judiciary  to  employ  the  individual  plaintiff  as  a  vehicle  for  the 
imposition  of  far-reaching  orders  extending  to  broad  classes  of  individuals: 

c         A  tendency  by  the  judiciary  to  impose  broad,  affirmative  duties  upon  governments 
and  society: 

d.  A  tendency  by  the  judiciary  toward  loosening  jurisdictional  requirements  such  as 
standing  and  ripeness: 

e.  A  tendency  by  the  judiciary  to  impose  itself  upon  other  institutions  in  the  manner  of 
an  administrator  with  continuing  oversight  responsibilities: 

Traditionally  courts  confine  what  they  say  to  the  facts  before  them.  A  judge  is  out  of  line 
when  she  or  he  injects  into  a  case  a  problem  or  issue  which  is  unnecessary  to  the 
decision. 

It  is  said  judges  should  not  make  law.  The  principle  is  sound  but  in  reality  judges 
sometimes  cannot  avoid  "making  law."  If  a  particular  case  raises  an  issue  of 
interpretation  and  there  is  no  precedent  to  apply  to  the  facts  under  nare  decisis,  then 
whether  the  Court  answers  yea  or  nay  to  a  question  "makes  law."  Great  restraint  should 
be  exercised,  but  the  case  must  be  decided. 


147 

JUDGE    LESLEY    BROOKS    WELLS  Page    35 


"Judicial  activism",  continued: 

Judges  dispose  of  cases;  they  are  not  equipped  or  staffed  to  administer  institutions.  Thus 
a  judge  is  singularly  ill-fitted  to  exercise  continuing  oversight  Having  no  staff,  judges 
must  "act  through  surrogates.  Where  remedies  are  due,  judges  should  craft  them  leanly  and 
narrowly  to  confine  them  to  proper  judicial  limitations. 

Any  analysis  of  standing  must  be  careful  so  as  not  to  deny  without  good  cause  a 
person's  access  to  the  courts.  Docket  considerations,  however  compelling,  should 
not  in  themselves  obstruct  legitimate  access  to  the  courts.  As  a  doctrine  limiting  judicial 
review,  standing  determines  who  can  litigate  under  the  Article  HI  cases  and  controversies 
requirement  of  the  U.S.  Constitution.  The  ripeness  doctrine  requires  injury  in  fact  or 
significant  threat  of  imminent  harm.  Ripeness,  like  moomess,  is  involved  when 
determining  whether  an  issue  may  be  litigated. 


148 


JUDGE    LESLEY    BROOKS    WELLS 


Affidavit 


I,     A/T^^^y    S^OK^       U/^J-LS     .  do  swear  that  the  information  provided  in 
this  statement  is,  to  the  best  of  my  knowledge,  true  and  accurate. 


(DATE)     ' 


(NAME) 


"^M^^ 


(NOTARY) 


149 

I.   BIOGRAPHICAL  INFORMATION  (PUBLIC) 

1.  Full  name!  (include  any  former  names  used.) 
Marjorie  Osterlund  Rendell  (n6e  Marjorie  May  Osterlund) 

2.  Address!  List  current  place  of  residence  and  office  address. 

Home:     3425  Warden  Drive 

Philadelphia,  PA  19129 

Office:   Duane,  Morris  &  Heckscher 

One  Liberty  Place,  42nd  Floor 
Philadelphia,  PA  19103-7396 

3.  Date  and  place  of  birth: 
12/20/47  -  Wilmington,  DE 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's 
name):   List  spouse's  occupation,  employer's  name  and 
business  addre8s(es). 

Married:   Hon.  Edward  G.  Rendell 

Mayor,  City  of  Philadelphia 
Room  215  -  City  Hall 
Philadelphia,  PA  19107 

5.  Education:   List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees  received, 
and  dates  degrees  were  granted. 

University  of  Pennsylvania 

Attended  1965-1969;  B.A.  degree  received  May  1969 

Georgetown  University  Law  Center     * 

Attended  1970-1971  (no  degree;  transferred  to  Villanova  upon 

marriage) 

Villanova  School  of  Law 

Attended  1971-1973;  J.D.  degree  received  May  1973 

6.  Employment  Record:   List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other 
enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 


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Employment : 
1973-1978 

1972-pre8ent 


University  of  Pennsylvania 
Development  Department;  Assistant  to 
Director  of  Annual  Giving 

Duane,  Morris  &  Heckscher 
Slimmer  1972  -  Summer  law  clerk 
1972-1973    -  part-time  law  clerk 
1973-1981    -  full  time  associate 
1981-pre8ent  -  partner 


Other  (boards) 


1973-1978 

Philadelphia  Bar  Association 

Board  of  Directors,  Young  Lawyers 
Section 

Late  1970s  -  Present 

University  of  Pennsylvania 
(various  advisory  boards) 

197R  -  Present 

Visiting  Nurse  Association 

of  Greater  Philadelphia 
Visiting  Nurse  Society 

Late  198Qs  -  Present 

East  Falls  Advisory  Board  of 
Chestnut  Hill  National  Bank 
Pennsylvania's  Ceunpaign  for  Choice 

1Qq:>  -  Present 

Academy  of  Vocal  Arts  ■» 

Avenue  of  the  Arts,  Inc~. 

Market  Street  East  Improvement  Association 

Philadelphia  Bar  Foundation 

Philadelphia  Friends  of  Outward  Bound 

Military  Service;  Have  you  had  any  military  service?  If  so, 
give  particulars,  including  the  dates,  branch  of  service, 
rank  or  rate,  aerial  number  and  type  of  discharge  received. 

No. 

Honors  and  Awards;   List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 


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Phi  Beta  Kappa  at  University  of  Pennsylvania. 

Philadelphia  College  of  Textile  and  Science 

Doctor  of  Laws  -  Honorary  Degree  awarded  in  May  1992 

9.  Bar  Aesociations !  List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are 
or  have  been  a  member  and  give  the  titles  and  dates  of  any 
offices  which  you  have  held  in  such  groups. 

American  Bar  Association 
Pennsylvania  Bar  Association 
Philadelphia  Bar  Association 

Board  of  Directors,  Young  Lawyers  Section  (1973-78) 
American  Bankruptcy  Institute 

Eastern  District  of  Pennsylvania  Bankruptcy  Conference 
Philadelphia  Bar  Foundation  (Board  member) 
Alternative  Dispute  Resolution  Committee 

of  the  Eastern  District  Bankruptcy  Conference 

Mediation  Division 

10.  Other  Memberships;  List  all  organizations  to  which  you 
belong  that  are  active  in  lobbying  before  public  bodies. 
Please  list  all  other  organizations  to  which  you  belong. 

Organizations  active  in  lobbying:   None. 

Other  Memberships : 

Academy  of  Vocal  Arts 

Avenue  of  the  Arts,  Inc.  (Vice-Chair) 

Bala  Golf  Club 

Chestnut  Hill  National  Bank/East  Falls  Advisory 

Board 
Market  Street  East  Improvement  Association 
Pennsylvania's  Campaign  for  Choice 
Philadelphia  Bar  Foundation 
Philadelphia  Friends  of  Outward  Bound 
Forum  of  Executive  Women 
International  Women's  Forum     ^ 
University  of  Pennsylvania 

Athletic  Advisory  Board  (Associate  Trustee) 

Trustees '  Council  of  Penn  Women 

Women's  Athletic  Board 
Vesper  Club 
Visiting  Nurse  Association  of  Greater  Philadelphia 

(Vice  Chair  of  Board  of  Trustees) 
Visiting  Nurse  Society  (Board  of  Managers) 

11.  Court  Admission:  List  all  courts  in  which  you  have  been 
admitted  to  practical  with  dates  of  admission  and  lapses  if 
any  such  memberships  lapsed.   Please  explain  the  reason  for 
any  lapse  of  membership.   Give  the  same  information  for 


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152 


administrative  bodies  which  require  special  admission  to 
practice. 

U.S.  Court  of  Appeals  for  the  Third  Circuit  (4/27/78) 
U.S.  District  Court  for  the  Eastern  District 

of  Pennsylvania  (3/18/75) 
Supreme  Court  of  Pennsylvania  (11/15/73) 

12.   Published  Writings!  List  the  titles,  publishers,  and  dates 

of  books,  articles,  reports,  or  other  published  material  you 
have  written  or  edited.  Please  supply  one  copy  of  all 
published  material  not  readily  available  to  the  Committee. 
Also,  please  supply  a  copy  of  all  speeches  by  you  on  issues 
involving  constitutional  law  or  legal  policy.   If  there  were 
press  reports  about  the  speech,  and  they  are  readily 
available  to  you,  please  supply  them. 

Publications: 

Contributing  author  of  seminar  materials  published  in 
connection  with  annual  seminar  presentations;  drafted 
sections  on  Secured  Creditor  Claims  and  Adequate  Protection 
in  all  editions.   The  most  recent  editions  are: 

Developments  in  Reorganization  and  Commercial  Finance  Law  — 
1991  and  1992  (Tenth  Annual  Seminar)  (378  pps.) 
Duane,  Morris  &  Heckscher 
Reorganization  and  Finance  Section 
Copyright  1992  Duane,  Morris  &  Heckscher 


Developments  in  Reorganization  and  Commercial  Finance  Law  — 
1990  and  1991  (Ninth  Annual  Seminar)  (305  pps.) 
Duane,  Morris  &  Heckscher 
Reorganization  and  Finance  Section 
Copyright  1991  Duane,  Morris  &  Heckscher 


Developments  in  Bankruptcy  Reorganization  and  Finance: 
(A  1990  Annual)  (289  pps.) 
Duane,  Morris  &  Heckscher 
Reorganization  and  Finance  Section    ^ 
Copyright  1990  Aspen  Publishers,  Inc.  * 


1989 


I  am  also  the  author  of  unpublished  materials  incorporated 
into  approximately  twenty  presentations  given  at  seminars  in 
which  I  participated  over  the  past  several  years  on  various 
bankruptcy,  creditors  rights  and  real  estate  issues.   These 
seminars  included  an  annual  seminar,  "Developments  in 
Reorganization  and  Commercial  Finance  Law, "  presented  every 
year  since  1982  by  the  Reorganization  and  Finance  Section  of 
Duane,  Morris  &  Heckscher  in  several  cities,  including 
Philadelphia,  Wilmington,  Boston,  and  New  York,  to  public 
audiences  comprised  primarily  of  clients  and  commercial 
lenders. 


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153 


13.  Health;  what  is  the  present  state  of  your  health?  List  the 
date  of  your  last  physical  examination. 

Excellent.   Most  recent  physical  examination:   April  1992. 

14.  ffudicial  Office:  State  (chronologically)  any  judicial 
offices  you  have  held,  whether  such  position  was  elected  or 
appointed,  and  a  description  of  the  jurisdiction  of  each 
such  court. 

None. 

15.  Citations:  If  you  are  or  have  been  a  judge,  provide: 

(1)  citations  for  the  ten  most  significant  opinions  you  have 
written;  (2)  a  short  summary  of  and  citations  for  all 
appellate  opinions  where  your  decisions  were  reversed  or 
where  your  judgment  was  affirmed  with  significant  criticism 
of  your  substantive  or  procedural  rulings;  and  (3)  citations 
for  significant  opinions  on  federal  or  state  constitutional 
issues,  together  with  the  citation  to  appellate  court 
rulings  on  such  opinions.   If  any  of  the  opinions  listed 
were  not  officially  reported,  please  provide  copies  of  the 
opinions . 

Not  applicable. 

16.  PnhTlc  Office;  State  (chronologically)  any  public  offices 
you  have  held,  other  than  judicial  offices,  including  the 
terms  of  service  and  whether  such  positions  were  elected  or 
appointed.   State  (chronologically)  any  unsuccessful 
candidacies  for  elective  public  office. 

Committeewoman  for  the  Republican  Party, 
30th  Ward,  20th  Division  from  1972-1976. 

17.  T.egal  Career; 

a.   Describe  chronologically  your  law  practice  and  % 

experience  after  graduation  from^law  school  including; 

1.  whether  you  served  as  clerk  to  a  judge,  and  if  so, 
the  name  of  the  judge,  the  court,  and  the  dates  of 
the  period  you  were  a  clerk; 

Not  applicable. 

2.  whether  you  practiced  alone,  and  if  so,  the 
addresses  and  dates; 

Not  applicable. 

3.  the  dates,  names  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies  with 


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154 


which  you  have  been  connected,  and  the  nature  of 
your  connection  with  each. 

1972-pre8ent   Duane,  Morris  &  Heckscher 

Summer  1972  -  Summer  law  clerk 
1972-1973    -  part-time  law  clerk 
1973-1981    -  full  time  associate 
1981-present  -  partner 

1.  What  has  been  the  general  character  of  your  law 
practice,  dividing  it  into  periods  with  dates  if 
its  character  has  changed  over  the  years? 

My  practice  has  always  focused  on  business  and 
commercial  law,  commencing  with  general  corporate, 
banking  and  securities  work  from  1973  to  1975,  and 
bankruptcy  and  reorganization  and  finance 
specialty  from  1975  to  the  present.   My  practice 
has  focused  on  the  debtor-creditor  relationship, 
in  and  out  of  bankruptcy  proceedings,  involving 
extensive  negotiation  and  varying  amounts  of 
litigation  over  the  years.   In  the  late  19708  and 
mid-19808,  I  was  involved  in  commercial  collection 
litigation  and  extensive  workout  negotiation  in 
bankruptcy  proceedings  of  debtor  clients  as  well 
as  creditor  clients  in  and  out  of  bankruptcy 
proceedings .   The  amount  in  controversy  was 
usually  in  the  range  of  $2-10  million.   Since  the 
mid-1980s,  my  work  has  also  included  many  larger, 
more  complex  matters,  involving  primarily 
negotiation  of  amounts  due  and  owing  to  clients  in 
the  multi-million  dollar  range,  with  emphasis  on 
negotiation  of  complex  issues  and  less  active 
litigation.   Many  of  my  more  recent  cases  have 
either  been  resolved  out  of  court  or  through  out 
of  court  negotiations  in  an  otherwise  consensual 
bankruptcy  proceeding.   Much  of  my  time  has  been 
spent  in  drafting  of  agreements  and  documents/ 
including  pleadings,  for  such  workouts  and  ' 
bankruptcy  proceedings.   I  hBve  also  been  engaged 
in  loan  restructures  and  documentation  of  loans 
and  other  financial  agreements  in  similar  workout 
or  problem  loan  situations. 

2.  Describe  your  typical  former  clients  and  mention 
the  areas,  if  any/  in  which  you  have  specialized. 

My  typical  clients  over  the  years  have  been  banks 
and  insurance  companies,  unsecured  creditors  and 
creditors'  committees,  as  well  as  debtors  in 
workouts  and  bankruptcy  proceedings.   I  would 
estimate  that  80%  of  my  time  has  been  spent 
representing  secured  creditors.   I  have 
specialized  in  issues  relating  to  the  rights  of 


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155 


secured  creditors,  including  but  not  limited  to 
issues  of  perfection,  lender  liability,  and 
fraudulent  conveyances.   I  have  also  tried  many 
relief  from  stay  motions  and  complaints  to 
conclusion  of  behalf  of  secured  creditors. 

c.    1.   Did  you  appear  in  court  frequently,  occasionally, 
or  not  at  all?  If  the  frequency  of  your 
appearances  in  court  varied,  describe  each  such 
variance,  giving  dates. 

In  examining  my  practice  since  1988,  I  find  that 
the  number  of  court  appearances  has  changed 
radically  in  1992  and  1993.  My  husband  became 
Mayor  of  Philadelphia  in  January  of  1992,  and  I 
have  delegated  many  of  the  court  appearances  to 
others;  also,  during  1992,  my  primary  focus  was  on 
two  major  cases,  both  of  which  involved  out  of 
court  restructurings  of  amounts  in  excess  of 
$100  million  of  indebtedness;  in  these  cases  we 
represented,  in  one  case,  the  bank  group,  and  in 
the  other,  the  subordinated  debenture  group. 
Also,  during  this  time  period,  my  department  of 
the  firm  (the  Reorganization  and  Finance  Section) 
has  delegated  much  of  the  commercial  litigation  to 
a  special  group  of  attorneys  in  our  Litigation 
Department  which  routinely  does  this  work  with  and 
for  our  section's  attorneys.   During  the  prior 
four  years,  namely,  from  1988  through  1991,  I 
appeared  regularly  in  court  in  any  given  year  on 
matters  in  which  we  represented  the  major  secured 
creditor  of  a  company  in  chapter  11.   There  were 
probably  five  to  ten  such  cases  in  any  given  year. 
Also  during  this  time  period,  I  represented  the 
trustee  in  a  chapter  11  proceeding,  and  appeared 
regularly  in  at  least  two  complex  chapter  11 
proceedings  in  which  we  represented  different 
classes  of  indebtedness.   I  believe  that  dUring 
1988  through  1991  I  appeared  in  court  anywhere 
from  three  to  eight  days  per  month. 

Court  appearances  were  more  frequent  during  the 
previous  time,  namely,  the  time  period  from  1980 
through  1988.   More  of  the  cases  which  I  handled 
involved  individual  secured  creditor  rights, 
rather  than  complex  cases,  and  matters  such  as  the 
right  of  the  secured  creditor  to  take  back  the 
collateral  pursuant  to  a  hearing  for  relief  from 
the  stay  were  tried  to  conclusion  frequently.   I 
appeared  in  court  very  regularly,  perhaps  as  many 
as  two  to  three  days  per  week. 


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156 


What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

Most  appearances  were  in  federal  courts 
(95-100%) 

(b)  state  courts  of  record; 

Seldom  (0-5%);  appeared  only  in  connection 
with  execution  on  or  enforcement  of 
judgments,  or  opening  of  judgment 
proceedings . 

(c)  other  courts. 
0% 

What  percentage  of  your  litigation  was: 

(a)  civil; 
100% 

(b)  criminal 

0% 

State  the  number  of  cases  in  courts  of  record  you 
tried  to  verdict  or  judgment  (rather  than 
settled),  indicating  whether  you  were  sole 
counsel,  chief  counsel  or  associate  counsel. 

My  experience  has  been  primarily  in  the  bankruptcy 
courts  in  which  a  chapter  11  case  is  pending. 
Many  contested  matters  and  adversary  proceedings 
are  brought  before  the  court  by  way  of  complaint 
or  motion,  which  are  heard  by  the  court,  non-jury, 
following  the  Federal  Rules  of  Civil  Procedure 
(made  applicable  by  the  Federal  Rules  of 
Bankruptcy  Procedure)  as  wej.1  as  the  Federal  Rules 
of  Evidence,  usually  in  hearings  lasting  from  one 
to  three  days.   It  is  difficult  to  state  "cases" 
that  have  been  "tried  to  verdict  or  judgment" 
because,  in  each  instance,  the  matters  involved 
hearings  on  fraudulent  conveyances,  relief  from 
stay,  preference  actions,  motions  to  dismiss,  and 
the  like.   Many  of  these  were  tried  to  conclusion, 
but  not  all  led  to  the  end  of  the  case  or  total 
resolution  of  a  matter:   I  have  handled  my  own 
cases  and  except  in  a  few  instances  in  which  I  was 
assisted  by  an  associate,  have  been  sole  and  chief 
counsel  in  matters  I  have  handled.   I  have 
appeared  and  litigated  in  over  35  bankruptcy 
matters . 


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5.   What  percentage  of  these  trials  was: 

(a)  jury. 
0% 

(b)  non-jury. 
100% 

18.  Litigation:   Describe  the  ten  most  significant  litigated 
matters  which  you  personally  handled.   Give  the  citations, 
if  the  cases  were  reported,  and  the  docket  number  and  date 
if  unreported.   Give  a  capsule  summary  of  the  substance  of 
each  case.  Identify  the  party  or  parties  whom  you 
represented;  describe  In  detail  the  nature  of  your 
participation  in  the  litigation  and  the  final  disposition  of 
the  case.   Also  state  as  to  each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the  judge  or 
judges  before  whom  the  case  was  litigated;  and 

(c)  The  individual  names,  addresses,  and  telephone  numbers 
of  co-counsel  and  of  principal  counsel  for  each  of  the 
other  parties. 

Please  see  Exhibit  A  attached  hereto. 

19.  Legal  Activities:  Describe  the  most  significant  legal 
activities  you  have  pursued,  including  significant 
litigation  which  did  not  progress  to  trial  or  legal  matters 
that  did  not  involve  litigation.   Describe  the  nature  of 
your  participation  in  this  question,  please  omit  any 
information  protected  by  the  attorney-client  privilege 
(unless  the  privilege  has  been  waivedX. 

I  have  been  involved  in  many  significant  legal  activities 
related  to  my  practice  area  as  well  as  the  practice  of  law 
in  general.   I  have  been  an  active  participant  in  seminars 
focusing  on  various  areas  of  bankruptcy  and  creditors  rights 
law,  including  real  estate,  leveraged  buyouts,  preferences, 
foreclosure  strategies,  and  the  impact  of  bankruptcy  issues 
on  state  trial  proceedings.   I  speak  annually  at  the  Temple 
Law  School  Forxim,  addressing  students  on  such  issues  as  the 
nature  of  the  practice  of  bankruptcy  and  the  role  that  debt 
plays  in  our  society. 


U497.1 


-  9  - 


158 


I  am  also  a  regular  speaker  at  our  annual  bankruptcy 
department  seminars  which  showcase  developments  in  this  area 
of  the  law. 

I  am  an  active  member  of  the  Eastern  District  of 
Pennsylvania  Bankruptcy  Conference,  formed  five  years  ago  to 
foster  education,  communication  and  relationrhips  among 
bankruptcy  lawyers  in  the  area  We  now  have  over 
450  members,  and  sponsor  dinners  semi-annually  and  a  two-day 
educational  retreat  each  year.   I  am  a  regular  participant 
and  usually  a  facilitator  at  the  educational  programs.  My 
partner,  David  Sykes,  is  currently  the  chairman  of  the 
conference . 

I  have  recently  served  on  a  committee  to  explore  and 
implement  alternative  dispute  resolution  by  means  of 
mediation  in  our  bankruptcy  court  system.   I  have  served  as 
a  mediator  in  our  district  court  mediation  program  and,  in 
response  to  a  request  from  our  bankruptcy  judges,  am  helping 
to  formulate  a  local  bankruptcy  rule  to  implement  such  a 
program  in  the  bankruptcy  court  suited  to  the  specific  needs 
and  unique  aspects  of  the  system. 

My  bar-related  activities  include  current  involvement  in  the 
Philadelphia  Bar  Foundation,  a  fundraising  arm  of  the 
Philadelphia  Bar  Association  which  raises  money  for  grants 
to  law-related  projects  throughout  the  city.   I  have  been 
active  in  soliciting  funds  for  these  projects  and 
considering  programs  worthy  of  support. 

As  a  younger  lawyer  I  was  an  advocate  for  disadvantaged 
children  under  a  progreun  sponsored  by  the  Support  Center  for 
Child  Advocates,  a  program  which  provides  attorneys  to 
represent  the  interests  of  abused  children  at  the  charging 
stage  and  to  interface  with  social  workers  and  relatives.   I 
was  also  elected  to  the  board  of  the  Toung  Lawyers  Section 
of  the  Philadelphia  Bar  Association  and  served  for  several 
years  on  various  committees,  one  of  which  explored  and 
proposed  a  revamping  of  sheriff's  sale  procedures  for' 
abandoned  housing.  ; 


159 

II.  FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST  (PUBLIC) 


List  sources,  amounts  and  dates  of  all  anticipated  receipts 
from  deferred  income  arrangements,  stock,  options, 
uncompleted  contracts  and  other  future  benefits  which  you 
expect  to  derive  from  previous  business  relationships, 
professional  services,  firm  memberships,  former  employers, 
clients,  or  customers.  Please  describe  the  arrangements  you 
have  made  to  be  compensated  in  the  future  for  any  financial 
or  business  interest. 

Upon  termination  of  my  relationship  with  Duane,  Morris  & 
Heckscher,  my  capital,  in  the  approximate  amount  of  $56,000, 
will  be  returned  to  me,  and  I  will  receive  a  termination 
payment  of  approximately  my  average  compensation  for  the 
past  two  years,  to  be  paid  upon  termination  over  up  to  two 
years,  at  my  option.   I  intend  to  move  my  HRIO  and  401K 
funds  to  an  independent  IRA. 

Also,  I  anticipate  receiving  income  from  the  rental  of  a 
vacation  home  that  my  husband  and  I  own,  which  averages 
$12,000-$14,000  (gross)  per  year. 

Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in 
determining  these  areas  of  concern.   Identify  the  categories 
of  litigation  and  financial  arrangements  that  are  likely  to 
present  potential  conf licts-of-interest  during  your  initial 
service  in  the  position  to  which  you  have  been  nominated. 

I  intend  to  disqualify  myself  from  hearing  matters 
involving:   the  City  of  Philadelphia;  Meridian  Bancorp., 
Inc.;  the  Visiting  Nurse  Association  of  Greater 
Philadelphia;  the  University  of  Pennsylvania;  and  entities 
in  which  I  have  a  "financial  interest"  pursuant  to  28  U.S.C. 
S  455.   I  will  follow  the  dictates  of  28  U.S.C.  S  455  as  to 
disqualification  due  to  a  conflict  regarding  any  oth6r 
matters  or  interest.  ,. 

I  will  need  to  establish  a  policy  relating  to  disclosure  and 
waiver,  or  disqualification,  as  to  persons  or  entities 
appearing  before  me  who  have  been  contributors  to  my 
husband's  political  campaigns;  beyond  a  certain  dollar 
amount  or  degree  of  support,  I  would  probably  disqualify 
myself,  but  do  not  know  of  many  persons  or  entities  expected 
to  appear  before  me  who  would  fall  into  such  a  category. 

I  will  try  to  strike  a  balance  between  the  ethical  aspects 
of  the  situation  and  the  practicalities  of  the 
administration  of  justice.   In  all  instances  I  will  follow 
the  Canons  of  Judicial  Ethics. 


14497.1 


-  11  - 


160 


3.  Do  you  have  any  plans,  commitments,  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during 
your  service  with  the  court?  If  so,  explain. 

No. 

4.  List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest,  gifts,  rents,  royalties,  patents,  honoraria,  and 
o^her  items  exceeding  $500  or  more  (if  you  prefer  to  do  so, 
copies  of  the  financial  disclosure  report,  required  by  the 
Ethics  in  Government  Act  of  1978,  may  be  substituted  here.) 

Please  see  copy  of  Form  AO-10  attached  hereto. 

5 .  Please  complete  the  attached  financial  net  worth  statement 
in  detail  (Add  schedules  as  called  for). 

Attached. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a 
political  campaign?  if  so,  please  identify  the  particulars 
of  the  campaign,  including  the  candidate,  dates  of  the 
campaign,  your  title  and  responsibilities. 

I  have  played  an  active,  but  not  official,  role  in  various 
campaigns  of  my  husband,  Edward  G.  Rendell.   He  served  as 
District  Attorney  for  the  City  of  Philadelphia  for  eight 
years  commencing  in  1978.   He  ran  unsuccessfully  in  the 
primary  for  Governor  of  Pennsylvania  in  the  spring  of  1986, 
and  unsuccessfully  in  the  primary  for  Mayor  of  Philadelphia 
in  the  spring  of  1987.   He  was  successful  as  a  candidate  for 
Mayor  of  Philadelphia  in  the  primary  held  in  May  of  1991,  as 
well  as  in  the  fall  general  election  in  November  of  1991, 
and  is  currently  Mayor  of  Philadelphia  for  the  term 
commencing  January  1992  to  December  31,  1995. 


14497.1 


161 

III.   GENERAL  (PUBLIC) 


An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances 
and  the  amount  of  time  devoted  to  each. 

My  pro  bono  and  community  service  activities  have  been  in 
the  form  of  my  active  service  on  the  boards  of  various 
organizations.  My  longest  community  service  association  has 
been  with  the  Visiting  Nurse  Association  of  Greater 
Philadelphia  (VNA) ,  having  served  on  its  board  and  headed 
many  of  its  committees  over  the  past  fifteen  years.   The  VNA 
is  the  only  homebound  home  care  entity  which  provides 
services  to  the  indigent  in  the  Philadelphia  area,  and  I 
have  been  personally  involved  in  fundraising  and  other 
efforts  for  the  poor  and  indigent  of  Philadelphia  in  this 
way.  The  organization  prides  itself  on  its  mission  of 
providing  care  to  those  unable  to  pay,  the  quality  of  its 
caring,  which  is  exceptional. 

I  have  also  been  actively  involved  on  various  boards  at  the 
University  of  Pennsylvania,  with  a  focus  on  helping  today's 
student  through  mentoring  and  other  counselling  programs. 
Many  female  students  I  have  counselled  are  on  scholarship 
and  need  the  active  support  and  encouragement  of  a  role 
model  to  help  them  pursue  their  education,  and  I  feel  I  have 
been  a  constructive  influence  for  many  such  women. 

Recently,  I  have  become  a  leading  contributor  of  time  and 
energy  to  the  civic  project  known  as  Avenue  of  the  Arts, 
Inc.,  which  is  a  non-profit  corporation  dedicated  to 
developing  a  cultural  district  in  center  city  Philadelphia. 
I  am  the  vice  chairman  of  the  board  of  directors  and 'play  a 
leadership  role  in  this  entity,  which %will  enhance  economic 
development  that  will  improve  economic  conditions  in  the 
adjacent  neighborhood  and  the  city  at  large. 

At  a  time  when  our  public  schools  are  tempted  to  curtail 
arts  programs  due  to  fiscal  constraints,  many  of  our 
citizens  are  looking  to  Avenue  of  the  Arts  to  help  instill 
an  appreciation  for  the  arts  in  our  children  through  many 
educational  programs  to  be  sponsored  there  and  a  new  High 
School  for  the  Creative  and  Performing  Arts  to  be 
constructed.   This  project  will  have  an  impact  on  our  city 
for  years  to  come. 

The  American  Bar  Association's  Commentary  to  its  Code  of 
Judicial  Conduct  states  that  it  is  inappropriate  for  a  judge 

-  13  - 


162 


to  hold  membership  in  any  organization  that  invidiously 
discriminates  on  the  basis  of  race,  sex,  or  religion.   Do 
you  currently  belong,  or  have  you  belonged,  to  any 
organization  which  discriminates  —  through  either  formal 
membership  requirements  or  the  practical  implementation  of 
membership  policies?  If  so,  list,  with  dates  of  membership, 
what  you  have  done  to  try  to  change  these  policies? 

I  do  not  belong  to  any  organization  that  discriminates  on 
the  basis  of  race,  sex  or  religion  in  its  admission 
policies.   The  golf  club  to  which  I  belong  does  impose  some 
distinctions  between  men  and  women  in  policies  regarding 
usage  of  club  facilities. 

3.  Is  there  a  selection  commission  in  your  jurisdiction  to 
recommend  candidates  for  nomination  to  the  federal  courts? 
If  so,  did  it  recommend  your  nomination?  Please  describe 
your  experience  in  the  entire  judicial  selection  process, 
from  beginning  to  and  (including  the  circumstances  which  led 
to  your  nomination  and  interviews  in  which  you 
participated) . 

The  selection  commission  established  in  my  jurisdiction  by 
Senator  Harris  Wofford  recommended  me,  along  with  four  other 
candidates,  for  nomination  as  a  result  of  a  formal  selection 
process.   In  early  June,  I  contacted  the  Chairman  of  the 
Commission,  President  Patricia  McPherson  of  Bryn  Mawr 
College,  to  obtain  the  application  form  to  be  completed  for 
submission  in  order  to  be  considered  for  this  position.   I 
submitted  a  complete  application  and  was  contacted  for  an 
interview,  which  consisted  of  a  one-half  hour  interview  with 
two  members  of  the  Commission.   Thereafter,  I  was  contacted 
for  a  further  interview  before  the  entire  Commission,  which 
took  place  on  July  6,  1993.   Thereafter,  I  believe  that  the 
Commission  provided  Senator  Wofford  with  my  name  and  the 
names  of  other  individuals  from  whom  he  would  select  a 
nominee.  On  July  27,  1993,  Senator  Wofford  recommended  me  to 
the  President  for  this  judicial  position.   Investigations 
conducted  by  the  Federal  Bureau  of  Investigation  and  \he 
American  Bar  Association  have  been  con\pleted,  and  I  was 
interviewed  by  attorneys  at  the  Justice  Department  in 
Washington  in  early  November. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a 
judicial  nominee  discussed  with  you  any  specific  case,  legal 
issue  or  question  in  a  manner  that  could  reasonably  be 
interpreted  as  asking  how  you  would  rule  on  such  case, 
issue,  or  question?  If  so,  please  explain  fully. 

No. 

5.  Please  discuss  your  views  on  the  following  criticism 
involving  "Judicial  activism." 


-  14  - 


163 


The  role  of  the  federal  judiciary  within  the  federal 
government,  and  within  society  generally,  has  become  the 
subject  of  increasing  controversy  in  recent  years.   It  has 
become  the  target  of  both  popular  and  academic  criticism 
that  alleges  that  the  judicial  branch  has  usurped  many  of 
the  prerogatives  of  other  branches  and  levels  of  government. 

The  role  of  the  federal  judiciary  is  limited  by  the 
Constitution,  and  the  separation  of  powers  which  is  its 
hallmark,  to  the  interpretation  and  enforcement  of  existing 
laws.   In  the  process  of  euch  interpretation  and 
enforcement,  the  role  of  the  federal  district  courts  is 
further  limited  by  the  nature  of  their  jurisdiction,  which 
is  limited  jurisdiction  under  Article  III  of  the 
Constitution,  and  established  precedent,  which  is 
controlling.   The  district  court  judge  is  charged  with  the 
resolution  of  distinct  matters  at  issue  before  him  or  her  in 
this  context.   The  judge  must  resolve  only  those  issues 
before  him  or  her  and  not  seek  to  solve  problems  or  craft 
solutions  broader  than  necessary  to  the  resolution  of  the 
instant  matter.   The  expansion  of  jurisdictional  limits  or 
modification  of  principles  of  jurisprudence  is  a  matter  for 
the  legislature,  not  the  judiciary,  to  undertake. 


164 


Exhibit  Jk 


Signif leant:  Lltlqatad  Mattare 


My  trial  experience  has  been  gained  primarily,  although  not 
exclusively,  in  the  bankruptcy  coiurt  system,  in  which  the  "case" 
is  a  reorganization  proceeding,  and  adversary  matters,  sometimes 
involving  actual  trials,  are  heard  by  the  court.   X  have 
litigated  in  the  bankruptcy  courts  locally  and  throughout  the 
country  in  at  least  35  cases..  The  following  are  examples  from 
ten  cases  in  which  matters  redsed  by  notion  or  con^laint  were 
litigated  by  me,  except  as  noted,  as  sole  trial  counsel,  several 
of  which  resulted  in  reported  decisions. 

1.    Bartholomew,  et  al.  v.  Wori-h«iiiy»r»n  Mational  Bank,  at  al. 

[United  States  District  Court  for  the  Eastern  District  of 
Pennsylvania,  Civil  Action  No.  64-1940  (1975);  United  States 
Court  of  Appeals  for  the  Third  Circuit,  No.  77-2217  (1978)] 

Summary 

Suit  by  purchaser  of  vacation  lot  against  banks  who  financed 
purchase,  on  basis  of  Truth-in-Lending,  Interstate  Land  Sales 
Full  Disclosure  Act,  and  usury  law  violations. 

One  of  the  defendants,  Americcm  Bank  and  Trust  Co.  of  Pa. 
(now  Meridian  Bank). 

iBBuea  Litigated 

Whether:   (i)  financing  of  the  purchase  of  a  vacation  lot 
was  the  loan  or  use  of  money  for  purposes  of  usury  law 
violations;  (ii)  banks  that  finance  a  purchase  of  a  lot  are  held 
liable  for  violations  of  the  Interstate  LanH  Sales  Full 
Disclosure  Act;  and  (iii)  Truth  in  Lending  Act  violations  could 
be  asserted  after  one  year  from  the  date  of  the  land  sale 
contract.   While  I  did  not  argue  the  matter  before  the  District 
Court  or  the  Third  Circuit,  I  was  involved  in  the  legal  strategy 
and  was  responsible,  with  counsel  for  Merchants  National  Bank, 
for  the  pleadings  in  and  briefing  of  the  matter,  especially  on 
appeal  to  the  Third  Circuit  (584  F.2d  1288). 

(continued) 

14500.1  Litigated  Matters  -  page  1 


165 


Significance  of  Issues/mtimate  Disposition 

The  court  decided  in  the  negative  as  to  all  of  the  issues 
referred  to  above,  issues  of  great  significance  to  banks  and 
other  entities  that  finance  such  purchases,  granting  summary 
judgment  in  favor  of  our  client. 

Judge 

Hon.  John  P.  Fullam,  Judge,  United  States  District  Court  for 
the  Eastern  District  of  Pennsylvania. 

Hon.  James  Hunter,  III,  Judge,  authored  opinion  for  United 
States  Court  of  Appeals  for  the  Third  Circuit. 

other  Counflcl 

Counsel  for  defendant  Merchants  Bank  and  Trust  Co.  of  Pa.: 

John  E.  Flaherty,  Jr.,  Esquire 

Dechert,  Price  &  Rhoads 

4000  Bell  Atlantic  Tower 

1717  Arch  Street 

Philadelphia,  PA   19103-2793 

(215)  994-2128 

Counsel  for  plaintiffs: 

Edward  C.  Toole,  Jr.,  Esquire 

(215)  241-1814 

Michael  J.  Glasheen,  Esquire 

(215)  241-1821 

Clark,  Ladner,  Fortenbaugh  &  Young 

2005  Market  Street 

2l6t  Floor 

Philadelphia,  PA  19103 


145.00.1 


Litigated  Matters  -  page  2 


166 


2.    In  re  Winslow  Center  ABBOciatcs 

[United  States  Bankruptcy  Court  for  the  Eastern  District  of 
Pennsylvania,  Bky.  No.  82-00020-G;  Adv.  No.  82-2662] 

Chapter  11  proceeding  of  New  Jersey  partnership  which  owned 
a  shopping  center. 

Client 

Provident  Mutual  Life  Insurance  Coii^>any,  the  mortgagee. 
iBBuas  I.it:igatad 

(1)  Relief  from  Stay  requested  based  upon  erosion  of 
secured  creditor's  equity  cushion.   32  B.R.  685  (Bankr.  E.D.  Pa. 
1983);  relief  granted. 

(2)  Rights  of  secured  creditor  to  post-petition  rentals 
recognized  under  title  theory.   50  B.R.  679  (Bankr.  E.D.  Pa.  1985). 

(3)  Objected  to  debtor's  attorney's  request  for  fees  from 
assets  subject  to  mortgagee's  lien.   57  B.R.  317  (Bankr.  E.D.  Pa. 
1986);  payment  of  fees  denied. 

Significance  of  IssugB/Oltimate  DiBposition 

Decision  relating  to  the  extent  of  the  interest  of  the 
mortgagee  in  post-petition  rents  as  cash  collateral  was  one  of  the 
first  such  decisions  decided  under  New  Jersey  law;  this  issue 
thereafter  became  the  subject  of  much  litigation  in  our  district  and 
elsewhere,  commencing  with  the  case  of  in  re  T.M.  Carlton  House 
Partners.  Ltd. ^  91  B.R.  349  (Bankr.  E.D.  Pa.  1988),  and  addressed 
most  recently  by  U.S.  District  Court  Judge  Bartle  in  In  re  SeSide 
Co..  Ltd. f 152  B.R.  878  (E.D.  Pa.  1993).   Also,  the  decision  has 
often  been  cited  for  its  limitation  of  the  ability  of  debtor  to 
charge  fees  against  secured  creditors'  collateral  to  only^those  fees 
that  benefitted  secured  creditor. 

Our  client  was  granted  relief  from  the  stay  and  proceeded  to 
foreclose  on  its  collateral.  Also,  it  was  able  to  collect  and  apply 
rents  from  the  shopping  center  tenants  to  reduce  the  debt  due  to  it. 

Judge 

Hon.  Emil  F.  Goldhaber,  Chief  Judge,  United  States  Bankruptcy 
Court  for  the  Eastern  District  of  Pennsylvania. 

(continued) 

14S00.1  Litigated  Hatters  -  page  3 


167 


Of-hftr  Couneel 

Counsel  for  Committee  of  Equity  Holders: 
Leonard  Goldberger,  Esquire 
Wolf,  Block,  Schorr  &  Solis-Cohen 
Packard  Building,  12th  Floor 
15th  and  Chffstnut  Streets 
Philadelphia,  PA  19102-2678 
(215)  977-2578 

Debtor's  Counsel: 
David  Fishbone,  Esquire 
Ciardi,  Fishbone  &  DiDonato,  PC 
1900  Spruce  Street 
Philadelphia,  PA  19103 
(215)  546-4370 

Counsel  for  Trustee: 
Robert  H.  Levin,  Esquire 
Adelman  Lavine  Gold  S  Levin,  PC 
1900  Two  Penn  Center  Plaza 
Philadelphia,  PA  19102-1799 
(215)  568-7515 


uspo.i 


Litigated  Matters  -  page  4 


168 


3.  In  re  Reading  Tiibe  Corporation  and  Laeh  Holdinqs  Limited ^ 
DebtorB .  [United  States  Bankruptcy  Court  for  the  Eastern 
District  of  Pennsylvania,  Case  Nob.  87-00429-T  and  87-00430-T. ] 

Summary 

Chapter  11  proceeding  of  copper  tube  manufacturer. 

ClifiJXt 

Meridian  Bank,  primary  secured  creditor,  as  well  as  the 
government  agencies  participating  in  its  loan. 

iBBueB  Litigated 

(1)  Challenged  propriety  of  debtor-in-possession  financing  where 
debtor  failed  to  prove  that  it  had  searched  for  available  financing 
elsewhere;  financing  denied.   72  B.R.  329  (Bankr.  E.D.  Pa.  1987). 

(2)  Initiated  and  litigated  Motion  for  Appointment  of  a  Trustee 
based  upon  allegations  of  fraud,  mismanagement  and  self-dealing  of 
company's  shareholders.   Discovery  ruling  reported  at  73  B.R.  99 
(Bankr.  E.D.  Pa.  1987). 

Significance  of  Issues/Ultijnate  Disposition 

The  Motion  for  Appointment  of  a  Trustee  became  a  trial  of  issues 
of  alleged  fraud  and  gross  mismanagement  conducted  on  an  expedited 
basis,  with  discovery  encompassing  20  to  25  days  over  3  months  and  the 
trial  itself  lasting  for  several  days  during  a  3-week  period  in  May 
1987.   Extensive  expert  testimony  as  to  financial  dealings  was 
presented.   The  matter  was  settled  before  conclusion  of  the  trial, 
paving  the  way  for  the  plan  of  reorganization  with  favorable  treatment 
of  our  client's  claims,  and  release  of  all  claims  against  our  client, 
including  lender  liability. 

Judge 

Hon.  Thomas  M.  Twardowski,  Bankruptcy  Judge,  United  States 
Bankruptcy  Court  for  the  Eastern  District  of  Pennsylvania. 

Other  Counsel 

Debtor's  Litigation  Counsel: 
Louis  Lustenberger,  Esquire 
Donovan  &  Leisure 
30  Rockefeller  Plaza 
New  York,  NY   10112 
(212)  632-3290 

(continued) 

1450P.1  Litigated  Matters   -  page   5 


169 


Debtor's  Bankruptcy  Counsel: 

Bruce  Frankel,  Esquire 

Angel  &  Frankel 

366  Iladison  Avenue 

New  York,  NT   1017-3191 

(212)  286-0100 


For  Creditors  Committee: 

Charles  Phillips,  Esquire 

Baskin  Leisawitz  Heller  Abramowitch,  P.C. 

2201  Ridgewood  Road,  Suite  400 

Wyomissing,  PA  19610 

(215)  372-8427 

For  Union/Employees'  Committee: 

John  Gough,  Esquire 

Montgomery,  McCracken,  Walker  &  Rhoads 

Three  Parkway,  20th  Floor 

Philadelphia,  PA  19102 

(215)    655-7200 


14500.1 


Litigated  Matters  -  page  6 


170 


4.    In  re  DninHnlrw  V.  clvitella  [United  States  Bankruptcy  Court  for 
the  Eastern  District  of  Pennsylvania,  Case  No.  80-01083K] 

SiiimmiT-y 

Chapter  11  proceeding  of  apartment  complex. 

The  debtor. 

iBBuaa  Litiqatad 

Rebuffed  constant  attempts  of  three  secured  creditors  to 
cause  case  to  be  dismissed,  converted,  or  to  file  their  ovm  plan 
of  reorganization. 

Successfully  reorganized  debtor  and  distributed  one  hundred 
cents  on  the  dollar  to  unsecured  creditors  in  Plan  of 
Reorganization. 

Resulted  in  frequently-cited  reported  decision  holding  that 
Disclosure  Statement  must  be  based  on  statements  of  fact,  not 
opinion.  14  B.R.  151  (Bankr.  E.D.  Pa.  1981);  reconsideration 
denied,  15  B.R.  206  (Bankr.  E.D.  Pa.  1981). 

Significance  of  iBSues/Ultimate  Disposition 

The  client  was  a  widow  whose  son  was  managing  the  complex. 
The  personal,  business,  legal  and  strategic  aspects  were  very 
challenging.   The  secured  creditors  were  extremely  aggressive  and 
constantly  commencing  litigation  to  try  to  take  over  the 
property.   We  were  able  to  prevail  over  them  and  confirm  a  plan 
providing  100%  payment  for  creditors  —  a  rare  result  in  a 
bankruptcy  case. 

Judge 

Hon.  William  King,  Judge,  United  States  Bankruptcy  Court  for 
the  Eastern  District  of  Pennsylvania. 


(continued) 


14580.1  Litigated  Matters  -  page  7 


171 


Qt.P"^   Counsel 

(Each  of  the  following  represented  a  secured  creditor) 

Rush  T.  Haines,  Esquire 
Drinker,  Biddle  &  Reath 
1100  PNB  Building 
Broad  and  Chestnut  Streets 
Philadelphia,  PA  19107 
(215)  988-2944 

Neal  D.  Colton,  Esquire 
Dechert,  Price  &  Rhoads 
4000  Bell  Atlantic  Tower 
1717  Arch  Street 
Philadelphia,  PA  19103-2793 
(215)  994-2515 

Matthew  Siembieda,  Esquire 

(215)  569-5609 

Samuel  Becker,  Esquire 

(215)  569-5527 

Blank,  Rome,  Comisky  &  McCauley 

Four  Penn  Center  Plaza 

Philadelphia,  PA   19103 


Litigated  Matters  -  page  8 


172 


5.    In  re  Ram  Manufacturing  Inc.  and  Ampro  Corp..  Debtors 

[United  States  Bankruptcy  Court  for  the  Eastern  District  of 
Pennsylvania,  Bky.  Nos.  83-00101-G  and  83-00102-G;  Adv.  No. 
83-0039-G) 

Summary 

Chapter  11  proceeding  of  electronics  manufacturer. 

Client 

Meridian  Bank,  secured  creditor. 

iBBues  Litigated 

Whether  Meridian  was  entitled  to  relief  from  stay  due  to 
lack  of  adequate  protection.   32  B.R.  960  (Bankr.  E.D.  Pa.  1983); 
reconsideration  denied  36  B.R.  822  (Bankr.  E.D.  Pa.  1984). 

Significance  of  Is sues/Ultimate  DispoBition 

The  bankruptcy  court  found  that  accounts  receivable  arising 
from  pending  lawsuits  were  too  uncertain  to  be  considered  for 
purposes  of  adequate  protection,  and  proper  valuation  standard  for 
company  which  had  ceased  operations  was  distress  value.   Given  the 
lack  of  adequate  protection  and  lack  of  debtor's  equity  in  the 
property,  relief  from  the  stay  was  granted  our  client  so  it  could 
proceed  to  foreclose  on  the  property. 

JUSigfi 

Hon.  Emil  F.  Goldhaber,  Chief  Judge,  United  States  Bankruptcy 
Court  for  the  Eastern  District  of  Pennsylvania. 

Other  CouhBel 

For  debtor: 

Thomas  B.  Rutter,  Esquire 

Rutter,  Solomon  &  DiPiero 

The  Curtis  Center,  Suite  750         » 

Philadelphia,  PA   19106  \ 

(215)  925-9200 

For  trustee: 

Donald  M.  Collins,  Esquire 
Stradley,  Ronon,  Stevens  &  Young 
2600  One  Commerce  Square 
Philadelphia,  PA   19103-7098 
(215)  564-8080 


Litigated  Matters  -  page  9 


I 


173 


6.    Tn  re  Center  for  the  Blind  [United  States  Bankruptcy  Court  for 
the  Eastern  District  of  Pennsylvania,  Case  No.  79-8ie-EG] 

Chapter  11  proceeding  of  non-profit  corporation  serving  the 
blind. 

Client 

The  debtor. 

TamiftB  T.ifci9at«»rf/Siffnifieance  of  iBBUes/UltlinBte  DiBDQBJtiQD 

This  case  was  not  adversarial,  but  was  unique  in  that  we 
confirmed  a  plan  providing  for  the  transfer  and  continuation  of 
the  Center's  endowment,  subject  to  Orphan's  Court  approval  (which 
was  obtained)  intact  for  the  benefit  of  the  intended 
beneficiaries,  i.e.,  the  blind,  and  payment  to  unsecured 
creditors  of  approximately  fifteen  cents  on  the  dollar. 

Judge 

Hon.  Emil  F.  Goldhaber,  Chief  Judge,  United  States 
Bankruptcy  Court  for  the  Eastern  District  of  Pennsylvania. 

other  Counsel 

For  Rudolphy  Residence: 

Christopher  H.  Gadsden,  Esquire 

Drinker,  Biddle  &   Reath 

1100  PNB  Building 

Broad  and  Chestnut  Streets 

Philadelphia,  PA  19107 

(215)  988-2780 

For  Attorney  General,  Commonwealth  of  Pennsylvania: 
James  Sutton,  Esquire 
(Current  address  unknown) 

For  Unsecured  Creditors: 
Lawrence  Lichtenstein,  Esquire 
Buchanan  Ingersoll 

Professional  Corporation 
1200  Two  Logan  Square 
18th  S.  Arch  Streets 
Philadelphia,  PA  19103-6933 
(215)  665-3923 


14500.1 


Litigated  Matters  -  page  10 


174 


7.    In  re  Philadelphia  Athletic  Club  [United  States  Bankruptcy 
Court  for  the  Eastern  District  of  Pennsylvania,  Bky.  No. 
80-02028-G;  Adv.  No.  82-0146-G) 

Summary 

Chapter  11  proceeding  of  athletic  club  facility  in  Center 
City  Philadelphia. 

Clifint 

Trustees  of  Central  States,  Southeast  and  Southwest  Areas 
Pension  Funds, Victor  Palmieri  &  Co.  as  Investment  Manager, 
primary  secured  creditor. 

iBBuas  Litigated 

Initiated  a  motion  for  relief  from  the  stay  and  entered  into 
a  stipulation  providing  for  automatic  relief  from  stay  upon  the 
happening  of  certain  events.   Upon  defaults  by  the  debtor,  relief 
from  stay  was  to  be  automatically  enforceable.   Debtor  failed  to 
make  a  timely  payment  and  contested  such  immediate  relief  in  an 
injunction  proceeding.   20  B.R.  322  (Bankr.  E.D.  Pa.  1982). 

Significance  of  iBsues/Ultimate  Disposition 

The  court  gave  effect  to  the  terms  of  the  Stipulation, 
giving  automatic  relief  to  our  client,  which  then  foreclosed  on 
this  major  real  estate  asset  at  a  sheriff's  sale. 

The  court's  opinion  is  often  cited  as  authority  for 
enforcement  of  court-approved  stipulations,  especially  relating 
to  relief  from  stay  for  secured  creditors  otherwise  forestalled 
from  executing  on  property  which  constitutes  their  collateral. 
The  case  was  perhaps  the  first  of  a  long  line  of  cases  involving 
single-asset  debtors  where  the  courts  have  been  viewing  the 
rights  of  single-asset  real  estate  debtors  somewhat  more 
summarily  than  those  of  other  complex  businesses  in  need  of 
reorganization. 

Judge 

Hon.  Emil  F.  Goldhaber,  Chief  Judge,  United  States 
Bankruptcy  Court  for  the  Eastern  District  of  Pennsylvania. 

(continued) 


Litigated  Matters  -  page  11 


I 


175 


other  Counsel 

Debtor's  Counsel; 

Pace  Reich,  Esquire 

Clark,  Ladner,  Fortenbaugh  &  Young 

2005  Market  Street,  2lBt  Floor 

Philadelphia,  PA  190.03 

(215)  241-1330 

Counsel  for  Partners  of  Ovmer  of  Debtor: 

Stuart  H.  Savett,  Esquire 

Savett,  Frutkin,  Podell  &  Ryan,  PC 

320  Walnut  Street,  Suite  508 

Philadelphia,  PA  19106 

(215)  923-5400 

Counsel  for  Trustee: 
Melvin  Lashner,  Esquire 
Lashner  &  Lashner 
1604  Locust  Street 
Second  Floor 
Philadelphia,  PA  19103 
(215)  732-9229 


14SP0.1 


Litigated  Matters  -  page  12 


176 


8.    In  re  Bates  Energy  Corp.  [United  States  Bankruptcy  Court  for 
the  Northern  District  of  Ohio,  Case  No.  B-86-476-Y] 

Siimmiiry 

Objection  of  creditor  client,  the  Bethlehem  Corporation,  to 
the  proposed  sale  of  assets  of  Bates  Energy  Corp.  in  Chapter  11 
proceedings 

Bethlehem  Corporation,  a  major  unsecured  creditor. 
iBBuee  Litigated 

Client  believed  that  the  proposed  sale  of  assets  was  for  the 
benefit  of  insiders  of  the  company.   I  traveled  to  Youngstown, 
Ohio  in  June  of  1986  on  a  few  days'  notice  and  put  on  a  case 
during  four  days  of  hearings  to  try  to  show  insider  dealings  and 
preferences,  sham  transactions,  undercapitalization,  and 
detriment  to  creditors . 

Significttnce  of  iBgueg/Ultimate  DiBpoeitipa 

The  court  approved  the  sale  over  objection.   Court  approval 
of  a  sale  of  assets  of  a  debtor  company  presents  a  difficult 
predicament  for  a  bankruptcy  judge  where  the  court  is  to  examine 
with  scrutiny  transactions  involving  insiders,  but  the  company 
has  little  prospect  for  reorganization  without  such  a  sale. 
While  the  case  itself  may  not  appear  to  be  significant,  what  was 
significant  at  the  time,  and  since  that  time,  was  the  fact  that  I 
put  on  a  substantial  case  to  prove  insider  dealing  on  a  few  days ' 
notice,  without  the  luxury  of  depositions,  discovery  and  the 
like.   Notwithstanding  the  fact  that  I  was  not  successful,  I 
believe  I  raised  serious  doubts  about  the  sale  that  should  have 
been  sufficient  tc  warrant  its  not  being  approved. 

Judge 

Hon.  William  T.  Bodoh,  Judge,  United  States  Bankruptcy  Court 
for  the  Northern  District  of  Ohio. 


(continued) 


J4S00.1  Litigated  Matters   -  page   13 


177 


rH-her  Counael 

Our  local  counsel: 
Jeffrey  Baddeley,  Esquire 
Squire,  Sanders  &  Denipsey 
1800  Huntington  Building 
Cleveland,  OH  44115 
(216)  687-8500 

Debtor's  Counsel: 

David  J.  Naftzinger,  Esquire 

Thompson,  Hine  &  Flory 

1100  National  City  Bank  Building 

Cleveland,  OH  44114 

(216)  566-5500 

Counsel  for  Mellon  Bank  (secured  creditor) 

Eric  A.  Schaffer,  Esquire 

Reed,  Smith,  Shaw  s>  McClay 

James  H.  Reed  Building 

Mellon  Square 

435  Sixth  Avenue 

Pittsburgh,  PA  15219 

(412)    288-3131 


14500.1 


Litigated  Matters  -  page  14 


178 


9.    In  re  Mart:a  Group  [United  States  Bankruptcy  Court  for  the 
Eastern  District  of  Pennsylvania,  Bky.  No.  83-01276-G;  Adv. 
No.  83-1145-G] 


Chapter  11  debtor  of  appliance  wholesale  cooperative. 

Cliimt 

Emerson  Quiet  Kool  Corporation,  seller/consignor  of 
appliances  to  the  debtor. 

laauea  Lifciqated 

The  validity  of  consignment  and/or  secured  creditor 
relationship  as  between  Emerson  Quiet  Kool  and  the  debtor. 

Siynlfieanc*  of  iBaueB/Dltimate  Disposition 

The  court  was  called  on  to  determine  who  should  suffer  the 
consequences  of  an  improperly  filed  financing  statement:   the 
debtor,  who  contributed  to  the  improper  filing  by  dealing  with 
Emerson  under  a  prior  name,  or  the  secured  creditor,  who  should 
have  made  certain  that  its  interest  could  be  determined  from  a 
search  of  relevant  records.   The  court  determined  that  the  onus 
should  be  imposed  on  the  secured  creditor,  who  had  the  burden  of 
showing  that  the  discrepancy  in  debtor's  name  was  not  "seriously 
misleading."   Also,  consigned  goods  delivered  after  notice  of 
filed  financing  statements  are  not  property  of  the  estate. 
33  B.R.  634  (Bankr.  E.D.  Pa.  1983) 

Judge 

Hon.  Emil  F.  Goldhaber,  Chief  Judge,  United  States 
Bankruptcy  Court  for  the  Eastern  District  of  Pennsylvania. 

Other  Counsel 

% 
Counsel  for  Debtor: 
Pace  Reich,  Esquire 
Clark,  Ladner,  Fortenbaugh  &  Young 
2005  Market  Street,  21st  Floor 
Philadelphia,  PA  19103 
(215)  241-1330 

(continued) 


Litigated  Matters  -  page  15 


179 


Counsel  for  Creditors  Committee: 
David  S.  Hope,  Esquire 
Stradley,  Ronon,  Stevens  &  Young 
2600  One  Conmierce  Square 
Philadelphia,  PA  19103-7098 
(215)  564-8168 

Counsel  for  other  secured  creditor: 
Howard  T.  Classman,  Esquire 
Blank,  Rome,  Comisky  &  McCauley 
Four  Penn  Center  Plaza 
Philadelphia,  PA  19103 
(215)  569-5568 


Msoo.i  Litigated  Matters  -  page  16 


180 


10.   Schweibert  v.  Schweibert   [Philadelphia  Court  of  Common 
Pleas,  September  Term,  1975;  No.  4769;  Civil  Action  - 
Equity) 

HiiimniiT-y 

Suit  in  the  Court  of  Common  Pleas  of  Philadelphia  County  by 
a  wife  against  her  psychiatrist  husband  for  enforcement  of  the 
terms  of  a  separation  agreement. 

Defendant  husband. 

iBSues  Litigated 

The  matter  was  ultimately  settled,  but  not  without 
substantial  discovery  and  negotiation  involving  the  interplay  of 
equity,  domestic  relations,  and  the  meaning  of  legal  terms  and 
conditions  in  accordance  with  their  intent. 

Significance  of  IsBues/Ultimate  Disposition 

The  legal  issues  were  less  significant  than  the  learning 
experience  for  me,  personally,  to  be  dealing  with  a  dispute  of 
this  nature  in  a  commercial  context.  The  matter  was  ultimately 
satisfactorily  resolved  by  negotiation  of  a  definitive  agreement 
that  had  the  clarity  lacking  in  the  originally  negotiated 
separation  agreement.   The  significance  to  the  client  was 
probably  much  greater  than  the  significance  of  any  other  matter  I 
have  worked  on. 

Judge 

Hon.  Calvin  Wilson,  Judge  of  the  Court  of  Common  Pleas  for 
the  County  of  Philadelphia. 


other  CouHBel 

Jerome  Charen,  Esquire 
(current  address  unknown) 


revised  in  LAH  12/3/93  1:45  pm 

PORHElt    RAKE!       WTSt  (MDOl.iai.CTJOOaniF.Sn         rtMMJ.    10/03/t] 

14S00.1  Litigated  Matters   -  page   17 


181 


FINANCIAL  DISCLOSURE  REPORT     JS5r>;.r:.«^»riMj 


■•part  »ilii<r»^  ^  tte  BxUea 
'rtora  kct  of   >••>,   »uti.   L.   la. 


II  v.i.c^.  Avp.  t,  iiioi-ua) 


I  Itnrrm  tUtx  i 


tint.  BlMU  lalUal) 


FEWPgLL.    M»riorl«    O. 


1.   GDOt 

anlt*a  states  Olstriet  Court 
for  to*  Bastarn  Siatrict 
of  Pannaylvanla 


a.  ana  mt  Mfact 


11/29/93 


4.  UUa    (ArUcl*  III  ]«<fM  Imtiamxm  mnxi*  or 

>[odoa,^UnrteS"statas  Siatrict 
Court  for  tna  Eaatarn  Sistric 
of   Pannsylvania 


ct 


X    _^w.,^    11/19/93 
IBltlal     __  ■Mill      __  WtaH 


1/1/92    -    11/1/9; 


'iRfana,   Morria  i'Siackacbar 
Ob*  Llbarty  Plaea,   42nd  rioor 


thiladalphia,   fA  19103-7396 


X;    It 


thtTtONEfcs  te  aadi  atetiaa  «hHc  TOO  tete  ao' 


*D  parti, 
itpartablflBfcfattan.  j^  jw  Jon  ii^ge. 


I.    POSITIONS.     (Rqxntiat  indivldnil  oii))r,  tee  pp.  7^8  of  Inttniaions.) 

yOSrnON  NAME  OF  ORGANIZATlON/ENTrrV 


n 


NONE      llo  rapotUUa  foaltloaa) 


PLEASE  SEE  ATTACHMENT 


II.    AGREEMENTS.    (Reporting  indnidua]  only,  tee  p.  8-9  of  Instructions.) 
J2ME  PARTIES  AND  TERMS 


n 


NONE      (Bo  svportabl*  affraaaasta) 
9/1/93  (c)    On   or    about    September    1,    1993:      Oral    agreement 


between  Duane,  Morris  t  HecKachar  and  Marjorie  0. 


Rendell,  whereby  Duane,  Morris  s  Heckscher 


III        h.ie^k.t  it.n.i^r\^ii^k.rr   t^tf\r\il^  ICOntinuea    on    ATTACHHENT) 

ill.     NON-INVESTMENT  INCOME.    (Rqmning  indiviifua]  and  tponse;  iee  pp.  9-U  of  Instructions.) 


n 


DATE 
(Honoruia  only) 


SOURCE  AND  TYPE 


GROSS  INCOME 
(youis,  not  spouse's) 


NONE      (la  wportatla  aaa-lnaataan  Smom) 


VI 

-12/31/92 

1/1 

-10/31/93 

1 

4 

Duane,  Morris  fi  Beckscher 
Partner  (gross)  compensation 


Duane,  Morris  S  Heckscher 
Partner  (gross)  compensation 


City  of  Philadelphia 
Compensation  to  Mayor  (S) 


(continued  on  ATTACHMENT] 


$ 

179,662.00 

$ 

133,333.30 

s 

s 

182 


FINANCIAL  DISOjOSURE  REPORT  (cosi'd) 


RENDELL,  Marjori*  O. 


Bau  of  tmpon 
11/29/93 


IV.  REIMBURSEMENTS  and  GIFTS  -  transportation,  lodging,  food,  entertainment 

~    '  '     "      !  ID  toeoat  nd  iiiiintiBt  ckDteae  ate  Ibe  avtotbctkili  *(B)'  and  *(PC)*  to  tndlcMt  iMiauite 
I  ad  (Uli  wtBtttit  tj  Wfaam  nZ  dcpcodcot  chUdio.  Wi|»iiLII»«<>.  Bm  ppJ3-U  €<  ImOiiakM.) 

SfiEBa  PESomnoN 


V.     OTI-IER  GIFTS.     (iDcluda  tbow  to  ipoose  and  depeodcnt  cfalldnn;  om  the  puatiMtleals  '(S)*  and  '(DC)*  to 

■    "■  1  depo  *        -.    .     _  


Indicate  other  fUU  rccclvtd  by  ipoiue  aod  dependeol  children,  rwpectlvely.  See  pp.l5-li  of  Instmcttoot.) 


n 


SOURCE 
NONE      (SO  aaok  nperuUa  (Itu) 


DESCRIPTION 


VALUE 


NOT    APPLICABLE 


Vi.     LIABILITiES.     (Indada  tboie  of  ipooie  and  dependent  efaOdrenj  indicate  when  applicable,  penoo  rcxpoosttiic 
for  Uibllity  by  nslns  the  parenthetical  *(S)'  for  (epante  Uabllltv  of  noDse,  *(J)*  for  Joint  lUblUty  of  icportlns 
Individual  and  tpousc,  anT'(DC)'  for  Uablllty  of  a  dependent  chUd.  ^  pp.l£-18  of^lnftnictloot.) 


n 


CREDITOR 
NONE     (00 1 


DESCRgnON 


VALUE    CODE' 


Meridian  Bank  (j) 


Meridian  Bank  (J) 

Cape  Eavlngc  Bank  (J) 
(refinancea  by 
"Home  Savinga  Bank 
in  May  1992) 


Line  of 

Crediti 

personal 

Line  ot 
debt 

Credit, 

campaign 

One-hall 

of  Bort 

gage 

on 

vacatior 
used  as 

duplex 
vacatior 

(one  unit 
homei  one 

ranted  to  othera) 

9  -•  Iii9,«w  ar  iMi        .    I  •  us.aoi  «■  «M,eoo  <t  •  «te,ooi  v>  tieo.eoo      »  •  «ioo,ooi  «■  <iM,afO 

a  •  «i5o,ooi  to  •sao.soo    «  -  asae.oo>  <a  ti>ooo,eoo    t  •  nan  tau  (1,000,000  <',v'' 


183 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


wa  of  r«r«OA  teporclsg 
KENDELL,    Marjorie    0. 


Oat*  or  toport 
11/29/93 


VIL  INVESTMENTTS  and  TRUSTS  -  income,  value,  transactions. 

and  liifwirlrnt  chfldra;  nc  pp.  U-rr  af  luniiiutom.) 


■RT 


*os. 


au,-fc 


«rasi  valva 

St  aoA  ef 


TUT 


-nr 


i  .C    f       *  ,   >^  i    j?kV  * 


i: 


If  stfV  aBuayx  Ina  «iael««u« 


■UT" 


TO 


'^l 


I — I  w<yB  '*!,'Trr 


teine*  Caor^a  Co.  KD  BSG 


!)ONE 


Kk  BFA  KTFM  GTD  KTG  CTF 
rWMA 


40NE 


MA  HFA  HSG  Sr  B 

Ereq  2000  10.4%  TECA 


10NE 


Aaericon  Tel  S  Tel 


div. 


General  Electric 


div. 


Public  Service  Enterprise 


div. 


KP  TaxExempt  Honey  Market 


div. 


DMC  T/F  Income  Trust  PA 
(J) 


div. 


buy 


.1/17  '92 


Unit  Trust  Muni  Inv  Tr 
Fd  PA  ser  14  (J) 


int 


°Muni  Inv  Tr 


iB£_ 


KP  Tax  Exempt  Money 
Market  (J) 


div 


Huffy  Corp  (dc) 


div 


Meridian  Baneorp  (dc^ 


div 


Toys  R  Ue  (dc) 


div 


KP  Govt  Income  Fd  (dc) 


div 


YV   T^y^ty    Tnr-nwg  Fd  (de) 


div 


XP  Cash  Reserve  Money 
M)ct  (dc) 


div 


CTF  Acrl  Tsy  Sr  W 
11/15/98  (dc) 


NONE 


E  I  Dupont  (dc) 


div 


Hulfy  Corp.  (dc) 


div 


(see  a  tach  id  con 


inua:ion  page) 


laaomt/Otla  CMMi      a^l.aoo  at  laai 


V«lu«^dut 


■  J-SU.OOC  ai  i««a 


T-a>B.ooi  tc  iieo.aeo 


e^2,«oi  to  s<ooo  D'H.mi  to  ris.ooo 


Hcooa  to  iieo.aeo  »*s>eo.eoi  to  ii.doo.doo     »-Mor«  th«e  ii.ooo.oec 


<««.  eel,  ei  «B3t      ii^MO.Bai  to  tioe.oeo     o-iioo.eoi  te  ii.bdo.boo     ywo  uit.  ii.doo.doo 

YnSTStSSrSSSmSi    SHt^SUn  lMo«t  tnal  wuto  only  J    cUHiunt  ^        ..s>c*u/iuxkat 


J  VUao  MUatf  coteai     ^A^^oiul 

(•••  em.  a)  ^»isok  «*im 


'^■'i   rrn 


184 


FINANCIAL  DISCLOSURE  REPORT  (eoat'd) 


RQIDELI.,  Marjorie  O. 


Data  of  topen 
11/29/93 


VIL  INVESTMEhfTS  and  TRUSTS  -  Income,  value,  transactions 

mA  <i|»ilm  tMMwei  mm  py.  IfcT  if  iMrmllim) 


>  .  •  -  '^   mt  ■■■■II    T^'r :-'-: 


COWTINUATION  PAGE 


Maridian  Bancozp  (dc) 


KP  Cash  Raserve  Money 
Mkt   (dc) 


5034  Asbury  Avenue 
Ocean  City,  NJ  (J) 


Duane,  Morris  t   HecKscher 
capital  account 


401-K  at  Vanguard  Fidu- 
ciary Co.,  Valley  Forge 


HS-10  Provident  Capital 
Mgint.,  Inc.,  Phila. 


IKA  -  National  Home  Life 
Assurance  Co. 


IRA  -  Delaware  Group  (S) 


401-K  at  Vanguard  (S) 


IRA  -  National  Home  Lxte 
Assurance  Co.  (S) 


Trusts:   See  ATTACHMENT 


div 


div 


int 


NONE 


NONE 


NONE 


NONE 


NONE 


NONE 


A 


1  HI— irctii  «»«Mi  •■ii.eoo  ar  iMt     »ii,en  w  w,t««      f«i,ioi  *•  i,m«      aHt.Mi  u  iii.eoo 


5  (a.^giiJ!  * "'  '!:m:iagUi;'" — KlUiSi  K  W.i^ — !:iU!tR'aMli?SS4°^^  t:nM.artl'iSIg:S8l 


T>Cu£/MaTkat 


185 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


tUMm  o<  Pmrmoa  toperUAp 
JUNDELL,  Harjorle  O. 


tet*  of  Itapcrt 
11/29/93 


VIII.  ADDITIONAL  INFORMATION  or  DCPLANATIONS. 


IX.    CERTIFICATION. 

Id  oonpliaoce  widi  the  provisions  of  2S  U5.C  t  455  and  of  Advisory  Opinion  No.  57  of  tbe  Advisory  Cbmminee  on 
Judidsl  Activities,  and  to  the  best  of  my  knowledge  at  tbe  time  after  reasonable  inquiry,  I  did  not  perform  any  adjadicatory 
function  is  any  litigation  during  the  period  covered  by  this  report  is  which  I,  my  spouse,  or  my  minor  or  dependent  childrea 
had  a  financial  interest,  as  de&sed  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigatioiL 

I  certify  that  all  isformation  given  above  (including  information  pertaining  to  my  spouse  and  minor  or  dependent  children, 
if  any]  is  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  beiiet,  and  that  any  information  not  reported  was 
withheld  because  it  met  applicable  sututory  provisions  permitting  noD.disclosure. 

I  further  oeniiy  that  earned  income  from  outside  employment  and  honoraria  and  the  acceptance  of  gifts  irtiicb  have  been 
reported  are  is  compliance  with  the  provisions  of  5  U.S.CA.  app.  7,  {  SOI  el  seq.,  5  U.S.C  t  7353  and  Judicial  Conference 
regulations. 


Signature , 


NOTE:     ANY 
MAY  BE  SUBJECT 


Due 


11/29/93 


RENDELL 
AL  WHO  KNOWINGLY  AND  WILFWiY  FALSIFIES  OR  FAILS  TO  FILE  THIS  REPORT 
AND  CRIMINAL  SANCnONS  (5  U.S.CA.  APP.  6,  t  104.  AND  18  U.S.C  S  IWl.) 


RLINO  INSIRUCnONS: 

MaD 

signed  ori^nal 

and  3  additional 

copies  to: 

Judicial  Ethics  Oommirtee 
Administrative  Office  of  the 

United  Slates  Conns 
Washiogton.  DC  2QS44 

186 


Marjorie  O.  Rendell 


Attachment  to 

Financial  Diaclosura  Report 

dated  Hovenber  29,  1993 


I.       POSITIONS. 
I>ir«ctori 


Associate 
Trustee: 


Officer: 


Partner: 


Philadelphia  Bar  Foundation 
Acadeay  of  Vocal  Arts 
Avenna  of  th*  Arts,  Zae. 
Bast  Falls  Advisory  Board 

of  the  Chestnut  Bill  National  Bank 
Market  Street  Bast  la^rovenent 

Association 
Pennsylvania's  Can^aign  for  Choice 
Philadelphia  Friends  of  Outward  Bound 
Visiting  Nurse  Association  of 

Greater  Philadelphia 
Visiting  Nurse  Society 


University  of  Pennsylvania,  by  reason 
of  serving  on  the  Athletic  Advisory 
Board 

Visiting  Nurse  Association  of 

Greater  Philadelphia  (Vice  Chair) 
Avenue  of  the  Arts,  Inc.  (Vice  Chair) 

Duane,  Morris  &  Hecks cher 


II.   AGREEMENTS.  ^ 

(continued)  is  to  pay  to  Marjorie  0.  Rendell,  upon 
withdrawal  from  partnership,  a  termination  payment  equal  to  the 
average  compensation  received  by  her  in  calendar  years  1991  and 
1992  (approximately  $200,000),  in  one  lump  sum,  or  in  two  annual 
installments,  at  her  option;  terms  now  being  reduced  to  %^iting. 
Partnership  capital  of  Marjorie  O.  Rendell  will  also  be  returned 
upon  withdrawal. 


ITJlS.l 


187 
Marjorie  0.  Rendell 


Attachnent  to 

Financial  Oi* closure  Report 

dated  Movenber  29,  1993 


ZZI.  MON-ZNVESIMEHT  ZNCOME. 
(continued) 


I  wee  offered  two  honoraria  during  the  reporting  period, 
both  of  idiich  were  given  instead,  at  my  request,  to  Avenue 
of  the  Arts,  Inc.  (a  non-profit  entity  which  is  developing  a 
cultural  district  in  Center  City  Philadelphia),  as  follows: 

Phi  Beta  Kappa  Society, 

Philadelphia  Chapter        5/92      $100.00 

Newcomers  Club, 

Bryn  Mawr,  PA  9/93      $125.00 

As  Mayor  of  Philadelphia,  my  spouse  has  been  offered 
honoraria  on  many  occaBions  during  the  reporting  period.  He 
did  not  accept  any  honoraria  during  such  period,  but 
requested  instead  that  contributions  be  made  to  the  City  of 
Philadelphia's  Department  of  Recreation  or  to  Avenue  of  the 
Arts,  Inc. 


VII.  INVESTMENTS  AND  TRUSTS. 

% 

While  reporting  person  and  spouse  believe  they  are  residual/ 
contingent  beneficiaries  of  two  family  trusts,  they  have  no 
current  beneficial  interests  in,  and  receive  no  current 
income  (or  principal)  distributions  from,  either  of  such 
trusts. 


17713.1 


188 


RKANOAL  STATCMENT 
>?ET  WORTH 


HASJORIE  0.  RENDELL 
October  31,  1993 


Plovide  t  cenffctt,  cvitM  flMAcU  BM  ««fft  ittttmeat  whkh  iienUtts  In  deun 
all  tstett  OncludLnt  btflk  aecouau,  lul  csuic,  leeoridet,  ttttstt,  Inveitments.  ind  ether  finaftdil 
lio1di»|i)  all  UablUtiet  Onclttdlnf  debtt,  mongtie*.  loam,  tad  Mhcr  financial  eblit«dent)  of 
yeuncif,  your  ipeuse,  and  other  inuncdiatc  membeit  of  your  bouiehold. 


Assns                            1 

UABUTSS 

CWk«kw«M<iita*i 

tltmffMH»\iaa  tiaatt  • 

lh>«Wii>5ifcWii  ■«— il 

> 

^Q.Ad- 

N«.MiMi».M« 

AmomU  m<  mui  iMtlnUc 

' 

AmmmimCKSi*!* 

»Mft»mNUd<r«i«MKM<i 

UapiUintoMiu 

Z>iK  bom  odim 

. 

OOiv  wptid  ttx  Mrf  inttiwt 

Deabtfiil 

•cMid*        (Sched. 2) 

140, 0( 

0 

&»«]  C4Utt  ewnU-kdd  Mh«au!«  (Sched. 2) 

i60,000 

ChtBtl  •wnmu  in4  vlhtr  Km  pty. 

ItMl  tiulc  merlittu  rstWikl* 

Oihu  tfcbtJ-ittmlM: 

AwiM  uii  eOicr  ptneet:  praptfiy 

25,000 

Cm(i  TiJut-Uft  intvtnci 

0>)m  *ij:u-i»miu: 

ERISA/IRA  Plans 

193,000 

« 

Ttti]  SikaiilM 

547,0 

10 

V 

KttWetft 

394,9 

7 

Tout  AMila                                        1 , 

41,947 

Tettl  SiUIUu  Hid  M  •>««             X , 

241,9 

7 

COVTINCENT  UABnJTSS 

CEKEIUL ISTOXMATION 

Ai  totami,  aonukfr  cr  guuiBlDC 

0. 

At*  aty  UM'J  f)«d|«<r  (Ad)  (dMd. 

no 

OBluMtarcMtaclc 

0 

An  yM  icbBlinl  Ir.  Mgr  loiti «  bill 

no 

tttdQiIiM 

0 

Ht«t  Ten  um  Wbi  bar^rvpc^f 

no 

rwvIilM  for  Fttfcnl  Inoomi  Tu 

0 

Oitar  ipMU  4<U 

»    1 

^_ 

•  525,000  home  equity  line  of 

credit  availability  at  Meridian  Bank 


189 

SCHEDOU:  1 
Securities  -  Values  as  of  10/31/93 

Mar-^oric  O.  Rendell 


American  Telephone 

&  Telegraph 
General  Electric 
Massachusetts  Housing 

Finance  Agency 

(Dec.  1998) 
Massachusetts  Housing 

Finance  Agency 

(Dec.  2000) 
Prince  Georges  County, 

Maryland  (Dec.  1997) 
Public  Service 

Enterprise  Group 


(Common  Stock) 
(Common  Stock) 

(Municipal  Bonds) 


(Municipal  Bonds) 

(Municipal  Bonds) 
(Common  Stock) 


$  11,500,00 
19,400.00 


6,249.40 

5,286.50 
6,778.10 
6,725.00 

$  55,939.00 


Mflrjorie  Pt  Rgndgll 

As  Custodian  for  Jesse  T.  Rendell  (dependent  child) 


Huffy  Corp. 
Kidder  Peabody 

Government  Income  Fund 
Kidder  Peabody 

Equity  Income  Fund 
Meridian  Bancorp 
Toys  'R'  Us 


(Common  Stock) 

(Mutual  Fund) 

(Mutual  Fund) 

(Common  Stock) 

(Common  Stock) 


$         647.63 

2,627.96 

5,174.69 
3,050.00 
2,808.75 

$14,309.03 


(continued) 


19007.1 


190 


Edward  G.  Rendell  <apouBe> 
As  Custodian  for  Jesse  T.  Rendell  ^dependent  child^ 


Certificate  of  Accrual 
of  Treasury  Security 
(due  November  1998) 

E .  I .  DuPont  de  Nemours 

Huffy  Corp. 

Meridian  Bancorp 


(Government  Bond) 

(Common  Stock) 
(Common  Stock) 
(Common  Stock) 


$  3,870.35 

4,762.50 

981.25 

3,050.00 


$12,664.10 


Edward  G.  and  Marjorie  O.  Rendell  < jointly > 


DMC  Tax  Free 

Income  Trust 
Municipal  Investment 

Trust: 

Pennsylvania  series  14 

Pennsylvania  series  13 


(Mutual  Fund) 


(Unit  Trust) 
(Unit  Trust) 


$   3,124.00 


2,872.20 
538.38 


$    6,534.58 


19007.1 


191 


SCHEDULE  2 


Real  Estate  Oimed  and  Mortgagee 


Property 


YaliiS 


Mortgage 


3425  Warden  Drive 
Philadelphia,  PA 


$210,000 


$160,000 


b.  5032  Asbury  Avenue 
5034  Asbury  Avenue 
Ocean  City,  NJ 


$170,000) 
$180,000) 


$180,000 


Both  mortgages  held  by 
United  Savings  Bank,  Philadelphia,  PA 


192 


UNITED  STATES  SENATE 

COMMITTEE  ON  THE  JUDICIARY 

QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 


I.  BIOGRAPHICAL  INFORMATION  (PUBLIC) 

1.    Full  name  (include  any  former  name  used.) 
Thomas  Ignatius  Vanaskie 


2.    Address:  List  current  place  of  residence  and  office 
address (es) . 


Current  Place  of  Residence:    Office  Address; 

Elliott,  Vanaskie  &  Riley 
Clarks  Green,  PA  600  Penn  Security  Bank  Bldg 

127  N.  Washington  Ave. 
Scran ton,  PA  18503 


3.    Date  and  place  of  birth. 

November  11,  1953 
Shamokin,  PA 


4.  Marital  Status  (include  maiden  name  of  wife,  or 
husband's  name).  List  spouse's  occupation, 
employer's  name  and  business  address (es). 

I  am  married  to  the  former  Dorothy  ("Dot")  G.  Williams. 
Dot  is  currently  a  part-time  student  at  Keystone  Junior 
College  in  LaPlume,  PA.  She  devotes  a  siibstantial  (unount 
of  her  time  to  matters  involving  our  children  at  our  Lady 
of  Peace  School  in  Clarks  Green,  Pennsylvania. 


5.   Education;   List  each  college  and  law  school  you 


193 


have  attended,   including  dates  of  attendance, 
degrees  received,  and  dates  degrees  were  granted. 


College; 


1971  to  1975 — Lycoming  College,  Williamsport,  PA 
B.A.,  Magna  Cum  Laude,  May,  1975 


Lav  School: 


1975  to  1978 — Dickinson  School  of  Law,  Carlisle,  PA 
J.D.,  C\im  Laude,  June  1978 


6.  Emplovment  Record;  List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or 
other  enterprises,  partnerships,  institutions  and 
organizations,  nonprofit  or  otherwise,  including 
firms,  with  which  you  were  connected  as  an  officer, 
director,  partner,  proprietor,  or  employee  since 
graduation  from  college. 

Summer  of  1975  -  following  the  completion  of  college  and 
prior  to  the  start  of  law  school,  I  worked  as  a 
construction  laborer.  I  cannot  recall  the  name  of  the 
firm  by  which  I  was  employed. 

Summer  of  1976  -  Internship  as  law  cleric  to  the  Honorable 
Genevieve  Blatt,  Pennsylvania  Commonwealth  Court, 
Harrlsburg,  PA,  and  Internship  at  the  Dickinson  School  of 
Law  Library,  Carlisle,  PA. 

1976  to  1977  School  Year  -  Internship  in  the  Law  Bureau 
of  the  Pennsylvania  Public  utility  Commission, 
Harrisburg,  PA. 

Summer  of  1977  -  summer  Associate  at  Dilworth,  Paxson, 
Kalish  &  Kauffman,  Philadelphia,  PA 

1977-1978  School  Year  -  Legal  Research  Consultant  to 
Clarence  D.  Bell  (Delaware  County) ,  Minority  Chairman  of 
the  Consumer  Affairs  Committee,  State  Senate,  Harrisburg, 
PA. 

September,  1978  to  September  1980  -  Law  Clerk  to  the 
Honorable  William  J.  Nealon,  then  Chief  Judge  of  the 
United  States  District  Court  for  the  Middle  District  of 
Pennsylvcmia . 

September,  1980  to  January  1986  -  Associate  in  the 
Scranton  Office  of  Dilworth,  Paxson,  Kalish  t   Kauffman. 


194 


January  1,  1986  through  March  19,  1992  -  Partner, 
Dilvorth,  Pazson,  Kalish  &  Kauffman.  (In  charge  of  the 
firm's  Scranton  office  since  January,  1987.) 

March  20,  1992  to  the  Present  -  Vice-President  and  Member 
of  the  Board  of  Directors  of  Elliott,  Vanaskie  t  Riley, 
a  Partnership  of  Professional  Corporations,  in  charge  of 
its  Scranton,  PA  Office. 


7.  Military  Service;  Have  you  had  any  military 
service?  If  so,  give  particulars,  including  the 
dates,  branch  of  service,  rank  or  rate,  serial 
number  and  type  of  discharge  received. 

I  have  not  had  any  military  service. 


8.  Honors  and  Awards ;  List  any  scholarships, 
fellowships,  honorary  degrees,  and  honorary  society 
memberships  that  you  believe  would  be  of  interest 
to  the  Committee. 

M.  Vashti  Burr  Award  -  Scholarship  given  annually 
by  the  Dickinson  School  of  Law's  faculty  to  the 
student  deemed  to  be  "most  desezrving"  having  in 
mind  his  economic  needs  and  the  excellence  of  his 
industry  and  scholarship. 

"Book  Award"  for  highest  grade  in  Torts  I. 

Member  of  the  Dickinson  Law  Review  Editorial  Staff 
-  Selection  based  upon  ranking  in  the  top  ten 
percent  of  my  class  after  the  first  year  of  law 
school.  (Final  rank  was  fourth  in  class  of  140 
students. ) 

Member  of  the  Dickinson  Law  School  Appellate  Moot 
Court  Board  -  Selection  based  upon  performance  in 
legal  writing  and  appellate  moot  court  practice. 

Member  of  the  Dickinson  School  of  Law  International 
Law  Moot  Court  Team  -  Selection  based  upon  academic 
performance. 

Member  of  the  Dickinson  School  of  Law's  Woolsack 
Society  -  membership  based  upon  outstanding 
academic  achievement. 

Article  published  in  the  inaugural  edition  of  the 
American  Students  of  International  Law  Society 


195 


International  Law  Journal  -  Selection  based  upon 
competitive  writing  process. 

1974  -  James  A.  Flnnegan  Award  -  The  highest  award 
given  by  the  James  A.  Flnnegan  Fellowship 
Foundation.  Selection  Is  based  upon  a  competitive 
essay  contest,  academic  performance,  and  personal 
recommendations.  The  award  provided  a  six  week 
Internship  with  a  state  governmental  agency  In 
Harrlsburg,  PA. 

1974-1975  -  Member  and  President  of  the  Lycoming 
College  Chapter  of  Omlcron  Delta  Epsllon,  a 
National  Economics  Honor  Society. 

1975  to  present  -  Member  of  Phi  Kappa  Phi  Honor 
Society. 

1975  -  Lycoming  College  "Chieftain  Award"  -  Given 
annually  to  the  College  Senior  who.  In  the  opinion 
of  the  students  and  faculty,  had  contributed  the 
most  to  Lycoming  College  through  support  of  school 
activities;  had  exhibited  outstanding  leadership 
qualities;  had  worked  efficiently  and  effectively 
with  the  members  of  the  college  community;  had 
evidenced  a  good  moral  code;  and  whose  academic 
rank  was  In  the  upper  half  of  the  senior  class. 
(Graduated  Magna  Cum  Laude  with  a  G.P.A.  of 
3.87/4.00,  majoring  In  political  science  with  a 
concentration  In  economics.) 

1975  -  Lycoming  College  "Tomahawk  Award"  -  Given 
annually  to  the  "outstanding  male  athlete"  at 
Lycoming  College. 

1974  -  Selected  to  the  First  Team  of  the  College 
Division  Academic  All-American  Football  Team;  First 
Team  of  the  Middle  Atlantic  Conference  Football 
Team;  Honorable  Mention  on  the  Associated  Press  All 
American  Football  Teeun,  College  Division;  Honorable 
Mention  on  the  Associated  Press  All  State  Football 
Team  for  both  colleges  and  universities;  Honorable 
Mention  on  the  Associated  Press  All  East  Football 
Team  In  the  College  Division. 

1993  -  Inducted  into  the  Shamokin,  Pennsylvania 
Chapter  of  the  Pennsylvania  Sports  of  Hall  of  Fame. 

1990  -  Selected  as  a  Member  of  "Who*s  Who  in 
Practicing  Attorneys." 

1993  -  Recipient  of  the  Our  Lady  of  Lourdes 


196 


Regional  High  School  Alxunni  Association  Board  of 
Governors'  Award  for  significant  contributions  to 
the  alimni  organization. 


9.  Bar  Associations t  List  all  bar  associations,  legal 
or  judicial-related  committees  or  conferences  of 
which  you  are  or  have  been  a  member  and  give  the 
titles  and  dates  of  any  offices  which  you  have  held 
in  such  groups. 

I  am  a  member  of  the  following  bar  associations  and 
professional  organizations: 

LacXawanna  Bar  Association 

Pennsylvania  Bar  Association 

American  Bar  Association 

Pennsylvania  Trial  Lawyers  Association 

American  Trial  Lawyers  Association 

Northeastern  Pennsylvania  Trial  Lawyers  Association 

Federal  Bar  Association 

American  Judicature  Society 

Z  have  served  as  Chair  of  the  Continuing  Legal  Education 
Committee  of  the  Lackawanna  Bar  Association  from  1991  to 
the  Present. 

Z  was  elected  a  member  of  the  Board  of  Directors  of  the 
Lackawanna  Bar  Association  in  1993. 

Zn  1993,  Z  was  appointed  as  a  member  of  the  Board  of 
Directors  of  the  Northeast  Pennsylvania  Trial  Lawyers 
Association. 

Zn  1992,  Z  was  appointed  to  the  Lawyers*  Advisory 
Committee  for  the  United  States  District  Court  for  the 
Middle  District  of  Pennsylvania. 

Zn  1993,  Z  was  appointed  to  the  Civil  Justice  Reform  Act 
Committee  for  the  United  States  District  Court  for  the 
Middle  District  of  Pennsylvania. 


10.  Other  Memberships;  List  all  organizations  to  which 
you  belong  that  are  active  in  lobbying  before 
public  bodies.  Please  list  all  other  organizations 
to  which  you  belong. 

American  Bar  Association,  Pennsylvania  Bar  Association, 
Pennsylvemia  Trial  Lawyers  Association  and  American  Trial 


197 


Lawyers  Association  are  active  in  lobbying  before  piiblic 
bodies. 

I  served  as  President  of  Our  Lady  of  Lourdes  Regional 
High  School  Alumni  Association  from  its  establishment  in 
1990  to  May,  1993.  I  remain  a  member  of  the  Board  of 
Governors  of  the  Alumni  Association. 

I  am  a  member  of  the  Glen  Oak  Country  Club,  Clarks 
Summit,  PA,  and  of  the  Paupack  Hills  Golf  &  Country  Club, 
Greento%m,  PA. 

Through  my  firm,  I  maintain  memberships  in  the  Scranton 
Area  Chamber  of  Commerce,  the  Scranton  Area  Fotindation, 
and  the  Economic  Development  Council  of  Northeastern 
Pennsylvania. 


11.  Court  Admission:  List  all  courts  in  which  you  have 
been  admitted  to  practice,  with  dates  of  admission 
and  lapses  if  any  such  memberships  lapsed.  Please 
explain  the  reason  for  any  lapse  of  membership. 
Give  the  same  information  for  administrative  bodies 
which  require  special  admission  to  practice. 

November  27,  1978  -  Pennsylvania  Supreme  Court. 

November  3,  1980  -  United  States  District  Court  for  the 

Middle  District  of  Pennsylvania. 

March  25,  1982  -    United   States   District   for   the 

Eastern  District  of  Pennsylvania. 

June  16,  1982  -     United  States  Court  of  Appeals  for 

the  Third  Circuit. 

April  18,  1983  -    The  Supreme  Court  of  the  United 

States. 


12.  Published  Writings;  List  the  titles,  publishers, 
and  dates  of  books,  articles,  reports,  or  other 
published  material  you  have  written  or  edited. 
Please  supply  one  copy  of  all  published  material 
not  readily  available  to  the  Committee.  Also, 
please  supply  a  copy  of  all  speeches  by  you  on 
issues  involving  constitutional  law  or  legal 
policy.  If  there  were  press  reports  about  the 
speech,  and  they  are  readily  available  to  you, 
please  supply  them. 


198 


Comment,  The  State  Sovereignty  Doctrine  Since  National 
League  of  Cities  v.  Usery;  A  New  Constitutional 
Interpretation  under  the  Commerce  Clause,  81  DICK. L. REV. 
599  (1977). 

The  European  Patent  Convention:  State  Sovereignty 
Surrendered  to  Establish  a  Supranational  Patent,  1  A8IL8 
INTERNAT'L  L.J.  73  (1977). 


I  provided  the  "Civil  Practice  Update"  at  the  1990 
Lackawemna  County  Bench  Bar  Conference.  The  materials  I 
prepared  in  connection  with  that  conference  consisted  of 
case  summaries  covering  approximately  100  decisions 
involving  civil  litigation  matters  under  both  Federal  and 
State  lav  announced  in  the  previous  12  months. 

In  December  of  1990  I  provided  a  lecture  titled  "Federal 
Practice  Update"  at  a  seminar  sponsored  by  the 
Pennsylvania  Trial  Lawyers  Association  in  Scranton, 
Pennsylvania. 

In  December  of  1992  I  made  a  presentation  on  the  subject 
of  "Trial  Preparation"  at  a  seminar  sponsored  by  the 
Pennsylvania  Trial  Lawyers  Association. 

Two  Copies  of  the  law  review  articles  and  one  copy  of  the 
course  materials  I  prepared  accompany  this  <juestionnaire. 

13.   Health:   What  is  the  present  state  of  your  health? 
List  the  date  of  your  last  physical  examination. 


Excellent 
June  29,  1993 


14.  Judicial  Office;  State  (chronologically)  any 
judicial  offices  you  have  held,  whether  such 
position  was  elected  or  appointed,  and  a 
description  of  the  jurisdiction  of  each  such  court. 

None . 


15.  Citations:  If  you  are  or  have  been  a  judge, 
provide:  (1)  citations  for  the  ten  most 
significant  opinions  you  have  written;  (2)  a  short 
summary  of  and  citations  for  all  appellate  opinions 
where  your  decisions  were  reversed  or  where  your 
judgment  was  affirmed  with  significant  criticism  of 
your  substantive  or  procedural  rulings;  and  (3) 


199 


citations  for  significant  opinions  on  federal  or 
state  constitutional  issues,  together  with  the 
citation  to  appellate  court  rulings  on  such 
opinions.  If  any  of  the  opinions  listed  were  not 
officially  reported,  please  provide  copies  of  the 
opinions. 

Not  applicable. 


16.  Public  Office;  State  (chronologically)  any  public 
offices  you  have  held,  other  than  judicial  offices, 
including  the  terms  of  service  and  whether  such 
positions  were  elected  or  appointed.  State 
(chronologically)  any  unsuccessful  candidacies  for 
elective  public  office. 

None. 


17.   Legal  Career; 

a.  Describe  chronologically  your  law 
practice  and  experience  after  graduation 
from  law  school  including: 

1.  whether  you  served  as  clerk  to 
a  judge,  and  if  so,  the  name  of 
the  judge,  the  court,  and  the 
dates  of  the  period  you  were  a 
cleric; 

Sept.  1978  to  Sept.  1980  -  Lav 
Cleric  to  the  Hon.  William  J. 
Nealon,  then  Chief  Judge  of  the 
U.S.  District  Court  for  the 
Kiddle  District  of 
Pennsylvania . 


2.  whether  you  practiced  alone, 
and  if  so,  the  addresses  and 
dates ; 

I  have  not  been  engaged  in  the 
practice  of  lav  by  myself. 

3.  the  dates,  names  and  addresses 
of  law  firms  or  offices, 
companies    or    governmental 

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200 


agencies  with  which  you  have 
been  connected,  and  the  nature 
of  your  connection  with  each; 

September,  1980  through 
December,  1985  -  Associate  in 
the  Scranton,  PA  office  of 
Dilworth,  Pazson,  Kalish  & 
Kauffman.  Our  Scranton  address 
was  600  Penn  Security  Bemk 
Bldg.,  127  N.  Washington  Ave., 
Scranton,  PA. 

January  l,  1986  to  March  19, 
1993  -  Partner  in  the  Scranton 
Office  of  Dilworth,  Paxson, 
Kalish  &  Kauffman.  I  was  in 
charge  of  the  Dilworth  Scranton 
office  from  January  1,  1987  to 
March  19,  1992. 

March  20,  1992  to  the  Present  - 
Vice-President  and  member  of 
the  Board  of  Directors  of 
Elliott,  Vanaskie  t  Riley,  a 
Partnership  of  Professional 
Corporations,  in  charge  of  its 
Scranton,  PA  Office. 


b.  1.  What  has  been  the  general  character 
of  your  law  practice,  dividing  it 
into  periods  with  dates  if  its 
character  has  changed  over  the 
years? 

The  general  character  of  my  law 
practice  has  been  general  civil 
litigation,  with  particular  emphasis 
in  complex  contract,  commercial, 
environmental,  employment,  and 
products  liability  litigation. 
Prior  to  1985  I  was  involved  in  some 
criminal  defense  matters.  Since 
1985,  however,  I  have  restricted  my 
practice  to  non-criminal  defense 
matters.  A  small  percentage  of  my 
practice  has  also  been  devoted  to 
general  representation  of  some  small 
businesses. 


201 


2.  Describe  your  typical  former 
clients,  and  mention  the  areas,  if 
any,  in  which  you  have  specialized. 

Former  clients  include: 

Individuals  in  employment 
discrimination,  trade  secret, 
restrictive  covenant,  contract, 
commercial,  products  liability,  and 
personal  injury  litigation. 

-  Closely-held  companies  in  commercial 
and  contract  litigation. 

Large  publicly  held  companies  in 
contract,  commercial,  and  products 
liability  litigation. 

American  sxibsidiaries  of  foreign 
corporations  in  environmental, 
employment,  and  products  liability 
litigation. 

A  municipal  authority  in  contract 
litigation. 

A  legislatively  established 
insurance  organisation  for  no-fault 
automobile  insurance  benefits  in 
statutory  interpretation  and 
insurance  coverage  litigation. 


c.  1.  Did  you  appear  in  court  frequently, 
occasionally,  or  not  at  all?  If  the 
frequency  of  your  appearances  in 
court  varied,  describe  each  such 
variance,  giving  dates. 

I  have  appeared  in  court  frequently, 
having  practiced  in  each  of  the 
three  Federal  District  Courts  in 
Pennsylvania,  the  Bankruptcy  Court 
for  the  Middle  District  of 
Pennsylvania,  the  Bankruptcy  Court 
for  the  Southern  District  of 
Florida,  the  United  states  Court  of 
Appeals  for  the  Third  Circuit,  the 
United  States  Supreme  Court,  the 
Pennsylvania  Supreme,  Superior  and 
Commonwealth  Courts,  and  the  trial 

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202 


courts  in  Lehigh,  Schuylkill, 
Northampton,  Luzerne,  Monroe, 
Laclcavanna,  Pike,  Wayne,  Lancaster, 
Cumberland,  Wyoming,  Bradford, 
Dauphin,  Lycoming,  Philadelphia  and 
Westmoreland  Counties.  I  have  also 
represented  clients  in  matters 
pending  before  the  Pennsylvemia 
Environmental  Hearing  Board  luid  the 
Pennsylvania  Board  of  Claims. 


2.   What  percentage  of  these  appearances 
was  in: 

(a)  federal  courts; 
50% 

(b)  state  courts  of  record; 
45% 

(c)  other  courts. 
5% 


3.   What  percentage  of  your  litigation 
was: 

(a)  civil; 

Since  1985,  one  hiindre4  percent  of 
my  litigation  has  been  civil 
litigation.  Prior  to  1985, 
approximately  ninety- five  percent  of 
my  practice  was  devoted  to  civil 
litigation  and  five  percent  of  my 
practice  devoted  to  criminal  defense 
work. 

(b)  criminal. 
See  answer  to  (a) . 


4.  State  the  number  of  cases  in  courts 
of  record  you  tried  to  verdict  or 
judgment   (rather   than   settled) , 

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203 


indicating  whether  you  were  sole 
counsel,  chief  counsel,  or  associate 
counsel . 

I  have  tried  to  verdict  or  judgment  in 
courts  of  record  tvelve  cases.  In  four 
of  those  cases  I  served  as  sole  counsel; 
in  six  of  those  cases  I  served  as  lead 
counsel;  and  in  the  remaining  two  cases  I 
served  as  associate  counsel. 

I  have  served  as  lead  counsel  in  taking 
over  litigation  following  trials  or 
arbitration  hearings  in  at  least  six 
other  separate  matters.  I  was  involved 
in  the  representation  of  these  matters 
until  final  judgment. 

I  have  served  as  lead  or  sole  coxmsel  in 
approximately  twenty  cases  that  went  to 
final  judgment  based  upon  case- 
dispositive  motions,  with  approximately 
fifteen  of  those  cases  decided  on  the 
basis  of  a  summary  judgment  record  that 
included  extensive  discovery. 

Finally,  I  have  served  as  lead  or  sole 
counsel  in  a  number  of  cases  that  were 
settled  following  the  start  of  trial  or 
after  the  completion  of  extensive  pre- 
trial discovery  and  the  final  pre-trial 
conference . 


5.   What  percentage  of  these  trials  was: 

(a)   jury;  (b)  non-jury. 

Of  the  cases  in  which  I  have  been 
involved  that  have  been  tried  to  verdict 
or  judgment,  two  have  been  jury  trials 
and  ten  have  been  non-jury  trials. 
Approximately  six  cases  were  settled 
following  the  selection  of  juries  and  the 
commencement  of  trial. 


18.  Litigation:  Describe  the  ten  most  significant 
litigated  matters  which  you  personally  handled. 
Give  the  citations,  if  the  cases  were  reported,  and 
the  docket  number  and  date  if  unreported.  Give  a 
capsule  summary  of  the  substance  of  each  case. 

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204 


Identify  the  party  or  parties  whom  you  represented; 
describe  in  detail  the  nature  of  your  participation 
in  the  litigation  and  the  final  disposition  of  the 
case.   Also  state  as  to  each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the 
judge  or  judges  before  whom  the  case  was 
litigated;  and 

(c)  the  individual  name,  addresses,  and 
telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other 
parties. 

A.  Raqnar  Benson,  Inc.  v.  Bechtel  Power  Corp,  651  P. 
Supp.  962  (M.D.  Pa.  1986),  aff 'd  mem. ,  833  F.2d  303  (3rd 
cir.  1987)  -  Ragnar  Benson,  Inc.  claimed  that  Bechtel 
Power  Corporation  ("Bechtel")  had  delayed  its 
construction  of  cooling  towers  at  the  Limerick  Nuclear 
Generating  Station,  located  near  Pottstown,  Pennsylvania, 
allegedly  resulting  in  Ragnar  Benson  incurring 
substantial  cost  overruns.  I  represented  Bechtel,  which 
counterclaimed  to  recover  overpayments  it  had  made  to 
Ragnar  Benson.  Ragnar  Benson's  claims  totaled  more  than 
$750,000.  Bechtel *s  counterclaim  sought  $250,000. 
Litigation  involved  thousands  of  records  pertaining  to 
construction  of  the  cooling  towers  over  a  three  year 
period.  The  case  was  tried  in  May  of  1986  to  the 
Honorcddle  R.  Dixon  Herman  of  the  Middle  District  of 
Pennsylvania.  I  bandied  the  examination  and  cross- 
examination  of  all  witnesses,  as  well  as  presentation  of 
all  arguments  and  preparation  of  Requests  for  Findings  of 
Fact  and  Post-Trial  Briefs.  Following  a  two  wee)c  trial. 
Judge  Herman  rejected  Ragnar  Benson's  claims  and  awarded 
judgment  in  favor  of  Bechtel  on  its  counterclaim.  See 
651  F.  Supp.  962  (M.D. PA).  On  appeal,  the  Third  Circuit 
affirmed,  without  opinion.  Serving  as  my  associate 
coiinsel  at  trial  was  John  L.  Heaton,  Esq.,  521 
Transportation  and  Safety  Building,  Harrisburg,  PA  17120, 
(717)  787-5473.  Opposing  counsel  was  Joseph  Conway, 
Esq.,  2510  One  PPG  Place,  Pittsburgh,  PA  15222,  (412) 
471-8300. 

B.  Czerw  V.  Grove  Manufacturing  Company,  Docket  No.  83- 
CIV-6005  -  Plaintiff's  husband  was  killed  when  the 
hydraulic  firetruck  ladder  he  was  occupying  in  fighting 
a  fire  in  Taylor,  Pennsylvcmia  contacted  a  high  voltage 
line.  I  represented  Grove  Manufacturing  company,  the 
manufacturer  of  the  ladder.  Defense  of  this  claim 
involved  coordination  of  expert  testimony  from  mechanical 

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205 


and  electrical  engineers  as  well  as  professional 
firefighters.  Following  a  two  week  jury  trial  in 
Lackawanna  Coxinty  before  the  Honorable  8.  John  Cottone  in 
October  of  1988,  a  jury  returned  a  verdict  in  favor  of 
Grove  Manufacturing  Company.  No  appeal  was  taken.  I  was 
lead  counsel  at  trial  and  conducted  examination  of  all 
witnesses,  jury  selection  and  all  arguments.  I  was 
assisted  by  Kevin  C.  Quinn,  Esq.  of  my  firm.  Opposing 
counsel  were  Patrick  E.  Dougherty,  Esq.,  Dougherty, 
Mundy,  Leventhal  &  Price,  459  Wyoming  Avenue,  Kingston  PA 
18704,  (717)  288-1427,  Paul  J.  Drucker,  Esq.,  Jablon, 
Epstein,  Wolf  &  Drucker,  Bellevue,  9th  Floor,  200  8. 
Broad  Street,  Philadelphia,  PA  19102,  (215)  922-7100,  and 
Marianne  Gilmartin,  Esq.,  Lenahan  t  Dempsey,  Kane 
Building,  N.  Washington  Ave.,  Scranton,  PA  18503,  (717) 
346-2097. 

C.  Tiiwm  tr.  Llinas,  Docket  Ho.  86-13E  -  I  represented 
Dr.  Lawrence  Tama  in  this  action  to  enforce  a  covenant 
not  to  compete  in  a  contract  between  Dr.  Tama  and  his 
independent  contractor.  Dr.  Llinas.  The  defendant 
claimed  the  right  to  pay  liquidated  damages  of  $50,000  in 
satisfaction  of  a  two  year  restrictive  covenant.  Several 
attorneys  had  informed  Dr.  Tama  that  he  could  not  enforce 
the  restrictive  covenant.  Following  a  three  day  trial  in 
July  of  1986,  Judge  Williams,  Senior  Judge  in  Bradford 
County,  enjoined  Dr.  Llinas  from  breaching  the 
restrictive  covenant.  On  appeal,  the  Pennsylvania 
Superior  Court  affirmed.  Docket  No.  00493HB686  of  1986. 
I  was  lead  counsel  and  conducted  the  examination  of  all 
witnesses  and  argximents  to  the  court.  Opposing  counsel 
was  Howard  Levinson,  Esq.,  Rosenn,  Jenkins  &  Greenwald, 
15  south  Franklin  street,  Wilkes-Barre,  PA  18701,  (717) 
826-5600. 

D.  United  States  v.  Tabor  Court  Realtv.  Scott  F.  Linde 
Party  to  the  Agreement  of  Sale.  943  F.2d  335  (3rd  Cir. 
1991),  cert,  denied.  117  L.Ed. 2d  413  (1992).  -  I 
represented  Scott  Linde,  who  had  contracted  to  purchase 
approximately  600  acres  of  land  in  Lackawanna  County  from 
the  court- appointed  Receiver  of  the  Raymond  Colliery 
Companies.  The  total  consideration  was  approximately 
$1.5  million.  Linde  had  conditionally  assigned  his 
interests  under  this  Agreement  of  Sale  to  Carrier  Coal 
Enterprises.  Following  a  hearing  in  January  of  1989,  the 
Honorable  Malcolm  Muir  of  the  Middle  District  of 
Pennsylvania  concluded  that  the  assignment  improperly 
interfered  with  the  court-directed  bidding  process  on  the 
property  in  question.  I  represented  Linde  on  appeal  to 
the  United  States  Court  of  Appeals  for  the  Third  Circuit. 
Carrier  Coal  Enterprises  elected  not  to  appeal.  In  order 
to  prevail  on  appeal  we  had  to  establish  that  the 

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206 


district  court  had  abused  its  discretion.  In  October  of 
1989,  the  Third  Circuit,  in  an  unreported  opinion,  agreed 
with  our  position  and  reversed  and  remanded  the  matter  to 
the  district  court  for  further  hearings.  Following  a  two 
day  trial  in  April  of  1990,  the  district  court  concluded 
that  Linde  had  not  acted  improperly  in  entering  into  the 
assignment.  There  then  ensued  litigation  between  Linde 
and  Carrier  Coal  Enterprises  as  to  whether  the  Assignment 
remained  in  effect.  The  district  court  ruled  in  favor  of 
Linde,  but  the  Third  Circuit  reversed  and  remanded  the 
matter  once  again.  See  943  F.2d  335  (3rd  cir.  1991). 
The  Supreme  Court  denied  certiorari.  117  L.Ed. 2d  413 
(1992).  On  the  second  remand  the  district  court  foxind  in 
favor  of  Carrier  Coal  Enterprises,  and  the  Third  Circuit 
affirmed  without  opinion.  Opposing  counsel  were  Thomas 
P.  Brennan,  Esq.,  Gallagher,  Brennem  &  Gill,  300  First 
Eastern  Plaza,  60  Pxiblic  Square,  Wilkes-Barre,  PA  18701 
(717)  824-3208,  and  Joseph  G.  Ferguson,  Esq.,  Rosenn, 
Jenkins  &  Greenwald,  15  8.  Franklin  Street,  Wilkes-Barre, 
PA  18701  (717)  826-5600. 

E.  EcXerslev  V.  WGAL-TV.  Inc..  831  F.2d  1204  (3rd  Cir. 
1987).  -  This  litigation,  brought  in  the  Middle  District 
of  Pennsylvania  under  the  Employee  Retirement  Income 
Security  Act,  was  the  sec[uel  to  a  settlement  of 
litigation  in  the  Eastern  District  of  Pennsylvania 
concerning  Mr.  Eckersley's  entitlement  to  a  bonus  based 
upon  the  net  profit  realized  on  the  sale  of  a 
Massachusetts  television  station.  We  claimed  that  the 
amount  received  in  settlement  should  be  included  in  the 
calculation  of  Mr.  Eckersley's  retirement  pension.  Judge 
Kosik  of  the  Middle  District  of  Pennsylvania  ruled  in 
favor  of  the  defendant.  On  appeal,  however,  the  United 
States  Court  of  Appeals  for  the  Third  Circuit  agreed  with 
our  position  and  reversed  the  district  court  ruling.  See 
831  F.2d  1204  (3rd  Cir.  1987).  Opposing  counsel  was  K. 
Jane  Fankhanel,  Esq.,  Fulbright  and  Jaworski,  666  Fifth 
Avenue,  31st  Floor,  New  York,  Mew  York  10103,  (212)  318- 
3000. 

P.  Stark  V.  Pennsylvania  National  Mutual  Casualty 
Insurance  Company.  Docket  No.  23  of  1987  -  Donna  Stark, 
a  member  of  the  Honesdale  Borough  Police  Force,  was 
involved  in  a  high  speed  chase  of  a  reckless  driver.  The 
police  cruiser  occupied  by  Officer  Stark  spun  out  of 
control  and  slammed  into  a  parked  vehicle.  The  vehicle 
Officer  Stark  was  chasing  was  uninsured  at  the  time  of 
the  accident.  We  brought  an  action  against  the  uninsured 
motorist  carrier  for  the  Borough  of  Honesdale,  which 
defended  on  the  ground  that  it  enjoyed  the  Borough's 
workers'  compensation  immimity.  This  defense  was  based 
upon  Pennsylvania  Supreme  Court  precedent  pre-dating  the 

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1984  Pennsylvania  Motor  Vehicle  Financial  Responsibility 
Act.  In  May  of  1989,  the  Hon.  Robert  Conway  of  the  Court 
of  Common  Pleas  of  Wayne  County  ruled  in  favor  of  the 
insurance  company.  We  appealed  to  the  Pennsylvania 
Superior  Court  (Docket  Nos.  01601-PHL-89  and  01602-PHL- 
89),  arguing  that  the  Pennsylvania  Supreme  Court 
precedent  was  no  longer  applicable  in  light  of  the  1974 
legislation.  The  Superior  Court  agreed,  xruling  in 
Officer  Stark's  favor  on  this  issue  in  1990  in  an 
unpublished  opinion.  The  insurance  company  was 
unsuccessful  in  its  efforts  to  have  the  Pennsylvania 
Supreme  Court  hear  the  case.  My  representation  in  this 
matter  began  in  1987  and  continues  to  the  present. 
Opposing  counsel  is  Howard  Levinson,  Esq. ,  of  Rosenn, 
Jenkins  &  Greenwald,  15  S.  Fremklin  Street,  Wilkes-Barre, 
PA   18701,  (717)  826-5600. 

6.  Allegheny  County  Sanitary  Authority  v.  United  States 
Bnvi ro^iwental  Protection  Agency »  et  al.»  557  F.Supp.  419 
(W.D.  Pa.  1983),  affld,  732  F.2d  1167  (3rd  Cir.  1987)  - 

This  action  was  brought  in  the  United  States  District 
Court  for  the  Western  District  of  Pennsylvania  to 
determine  the  entitlement  of  the  Allegheny  County 
sanitary  Authority  ("ALCOSAN*')  to  a  multi-million  dollar 
grant  under  the  Federal  Water  Pollution  Control  Act.  A 
principal  issue  in  this  litigation  was  whether  the  state 
environmental  agency  charged  with  administering  the 
federal  funding  program  was  amenable  to  suit  for  alleged 
violations  of  the  Federal  Water  Pollution  Control  Act. 
In  an  Opinion  reported  at  557  F.Supp.  419  (W.D.  Pa. 
1983),  the  Hon.  Hubert  I.  Teitelbaum  ruled  against 
ALCOSAN.  The  Third  Circuit,  in  an  Opinion  reported  at 
732  F.2d  1167  (3rd  Cir.  1984),  affirmed  the  trial  court. 
I  served  as  co-counsel  in  this  litigation  with  Gov. 
Robert  P.  Casey.  I  was  principally  responsible  for  the 
preparation  of  the  trial  and  appellate  court  briefs. 
Following  the  Third  circuit  decision,  I  assumed  the  role 
of  lead  counsel  in  this  litigation,  which  was  eventually 
decided  in  1987  on  a  summary  judgment  motion.  The  trial 
court  ruling  on  the  summary  judgment  motion  is  not 
reported.  Opposing  counsel  included  Dean  Diinsmore,  Esq., 
United  States  Department  of  Justice  (202)  633-2216; 
Mazine  Woelfling,  Esq.  (717)  787-3483,  now  a  member  of 
the  Pennsylvania  Environmental  Hearing  Board;  and  James 
J.  Kutz,  Esq. ,  Eekert,  Seamans,  Cherin  &  Mellott,  One 
South  Market  Square  Building,  213  Market  Street, 
Harrisburg,  PA  17701.  This  matter  was  handled  between 
1982  and  1987. 

H.  Precision  National  Plating  Services.  Inc.  v.  United 
States  Pwtyi  fftTiwental  Protection  Agency  -  I  served  as  lead 
counsel,   representing   Precision   National   Plating 

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Services,  Inc.  ("Precision"),  in  litigation  concerning 
the  Environmental  Protection  Agency's  "emergency  powers" 
provisions  under  the  Comprehensive  Environmental 
Response,  Compensation  and  Liability  Act,  as  amended 
("CERCLA"),  and  the  Safe  Drinking  Water  Act.  EPA  had 
threatened  to  issue  unilaterally  an  Administrative  Order 
that  could  have  resulted  in  Precision  incurring  hundreds 
of  thousands  of  dollars  in  investigative  and  remedial 
actions  that  were  not  compelled  by  any  imminent  threat  to 
public  health  or  the  environment.  Initially,  ve  brought 
an  action  in  the  United  States  District  Court  for  the 
Eastern  District  of  Pennsylvania  for  immediate  injunctive 
relief.  No.  90-6813.  Although  ruling  against  Precision 
on  jurisdictional  grounds,  the  Hon.  J.  William  Ditter 
expressed  sympathy  with  Precision's  "plight,"  observing 
that  the  record  revealed  that  Precision  had  responded  to 
all  reasonable  requirements  imposed  upon  it  by  state 
environmental  agencies  and  that  the  matter  of  which  EPA 
was  complaining  certainly  did  not  appear  to  involve  an 
imminent  threat  to  public  health  or  the  environment. 
1990  W.L.  191968  (E.D.  PA  1990).  Subsequently,  EPA 
issued  an  Administrative  Order,  purporting  to  exercise 
its  "emergency  powers"  under  both  CERCLA  and  the  Federal 
Safe  Drinking  Water  Act.  Because  jurisdiction  over 
orders  issued  under  the  Safe  Drinking  Water  Act  is  vested 
in  the  appellate  courts,  we  caused  to  be  filed  a  Petition 
for  Review  with  the  United  States  Court  of  Appeals  for 
the  Third  Circuit.  (Docket  No.  91-3158.)  Following  our 
briefing  of  issues  involving  the  proper  exercise  of  the 
"emergency  powers"  provisions  and  EPA's  authority  to 
effectively  enforce  compliance  with  administrative  orders 
through  the  threat  of  acczrual  of  substantial  monetary 
penalties,  EPA  and  Precision  resolved  the  dispute  in  1991 
on  terms  favorable  to  Precision  yet  protective  of  pviblic 
health  and  safety.  Opposing  counsel  was  Karen  Kellen, 
Esq. ,  United  States  Environmental  Protection  Agency, 
Region  III  (3RC22),  841  Chestnut  Building,  Philadelphia, 
PA  (215)  597-9800. 

I.  Scranton  Redevelopment  Authority  v.  Pennsylvania 
Department  of  Transportation.  Pa.  Board  of  Claims  Docket 
No.  658  —  This  action  arose  out  of  condemnation  of 
properties  in  South  Scranton.  The  Pennsylvania 
Department  of  Transportation  ("PennDOT")  had  used  the 
Scranton  Redevelopment  Authority  as  a  condemnation  agency 
to  acquire  a  number  of  properties  along  a  proposed  right- 
of-way.  PennDOT  later  scrapped  its  plans  for  the 
highway,  and  did  not  sign  a  proposed  written  contract 
with  the  Scranton  Redevelopment  Authority  for  the 
acquisition  of  the  properties  in  question.  An  action  was 
brought  before  the  Pennsylvania  Board  of  Claims,  seeking 
to  impose  liability  on  promissory  estoppel  and  contract 

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theories.  PezmDOT  defended  on  the  ground  that  no  written 
contract  between  it  and  the  Redevelopment  Authority 
existed.  We  were  retained  following  the  Board  of  Claims 
trial  to  prepare  proposed  findings  of  fact,  conclusions 
of  law,  and  a  memorandum  of  law.  I  was  the  principal 
drafter  of  our  filings,  which  were  submitted  in  1983. 
The  Board  of  Claims  ruled  in  our  favor  in  1984.  The 
matter  was  subsequently  settled  in  1985  on  appeal  to  the 
Commonwealth  Court,  resulting  in  a  substantial  recovery 
for  the  financially  distressed  City  of  Scranton.  I 
served  as  co-counsel  on  this  matter  with  Governor  Robert 
P.  Casey  and  James  W.  Brown,  Esq.  225  Main  Capital  Bldg., 
Harrisburg,  PA  17120,  (717)  787-5403.  opposing  counsel 
was  Spencer  Manthorp,  Esq. ,  then  Chief  Coiinsel  for 
PennDOT,  Department  of  Transportation,  Room  313, 
Transportation  &  Safety  Building  (717)  787-2063. 

J.  Maid  Rite  Steak  Co.  v.  United  States,  643  F.  Supp. 
1162  (M.D.  Pa.  1986).  —  I,  along  with  Morey  M.  Myers, 
Esq.,  represented  Maid  Rite  SteeiX  Co.  ("Maid  Rite")  in  an 
action  challenging  the  Internal  Revenue  Service's  denial 
of  Maid  Rite's  attempt  to  obtain  an  investment  tax 
credit.  The  principal  owners  of  Maid  Rite  had 
erroneously  claimed  the  investment  tax  credit  at  issue  on 
their  personal  tax  returns.  An  examination  of  the 
owners'  tax  returns  disclosed  that  the  owners  were  not 
entitled  to  the  tax  credit.  Thereafter,  Maid  Rite 
attempted  to  claim  the  credit,  but  it  was  denied  by  the 
Internal  Revenue  Service.  I  was  principally  responsible 
for  preparation  of  a  brief  in  support  of  our  s\immary 
judgment  motion.  The  Hon.  William  J.  Nealon  ruled  in 
favor  of  Maid  Rite,  concluding  that  the  owners  had  not 
made  a  binding  irrevocable  tax  credit  election  by 
erroneously  and  in  good  faith  claiming  the  investment  tax 
credit  themselves.  The  court  also  ruled  that,  even  if 
such  election  was  binding,  the  Internal  Revenue  Service 
abused  its  discretion  in  refusing  to  permit  the  taxpayers 
to  amend  their  return.  The  court's  decision  is  reported 
at  643  F.Supp.  1162  (M.D. PA  1986).  Opposing  counsel  was 
Stephen  Carlton,  (202)  724-6514,  United  States  Department 
of  Justice.  Co-counsel  was  Morey  M.  Myers,  Schnader^ 
Harrison,  Segal  g  Lewis,  First  Eastern  Bank  Bldg., 
Scranton  PA  (717)  342-6100. 

19.  Legal  Activities;  Describe  the  most  significant 
legal  activities  you  have  pursued,  including 
significant  litigation  which  did  not  progress  to 
trial  or  legal  matters  that  did  not  involve 
litigation.  Describe  the  nature  of  your 
participation  in  this  question,  please  omit  any 
information  protected  by  the  attorney-client 
privilege  (unless  the  privilege  has  been  waived.) 

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I  served  as  lead  counsel  in  a  Civil  RICO  action 
concerning  the  efforts  of  a  healthcare  provider  to 
circumvent  Certificate  of  Need  requirements  to  establish 
a  radiation  therapy  center.  Powers  v.  WiH  ifl]ft**p?rt 
Hospital «  et  al.  (M.D.Pa./  Docket  89-0059)  I  represented 
a  radiation  oncologist  whose  practice  was  threatened  by 
the  establishment  of  the  competing  radiation  therapy 
center.  Defendants  were  represented  by  prominent 
Philadelphia,  Pittsburgh  and  Atlanta  law  firms.  I 
coordinated  extensive  discovery  efforts.  The  case,  along 
with  parallax  litigation  in  the  Middle  District  of 
Pennsylvania,  the  Pennsylvania  Commonwealth  Court,  and 
the  Pennsylvania  Department  of  Health,  ultimately 
settled. 

I 

A  significant  litigation  matter  which  settled  on  the  eve 
of  trial  was  Condella  v.  Duo  Fast  Corporation  (Lackawanna 
Coiinty,  Docket  88-CIV-6187) .  This  was  a  products 
liability  case  in  which  I  represented  the  plaintiffs. 
William  Condella  was  severely  injured  when  a  nail  from  a 
nail  gun  discharged  through  his  skull,  embedding  below 
the  scalp  line.  Fortunately,  Mr.  Condella  had  not 
sustained  severe  neurological  impairment.  Extensive 
discovery  yielded  information  concerning  a  design  defect 
in  the  nail  gun  and  negligent  conduct  on  the  part  of  the 
companies  in  charge  of  the  construction  site.  The  case 
was  eventually  settled  under  terms  that  will  pay  Mr.  and 
Mrs.  Condella  more  than  $4.6  million. 

I  provided  pro  bono  representation  to  a  local  non-profit 
gymnastics  training  center  in  connection  with  its  efforts 
to,  secure  a  building  at  which  to  conduct  its  activities 
for  the  youth  of  this  area. 

From  1991  to  the  present  I  have  served  as  Chair  of  the 
Continuing  Legal  Education  Committee  of  the  Lackawanna 
Bar  Association.  In  that  capacity,  I  developed  a  program 
of  monthly  continuing  legal  education  programs  presented 
to  members  of  the  Lackawanna  Bar  Association.  We  have 
also  invited  students  and  professors  of  local 
universities  and  colleges  to  attend  our  presentations. 
I  have  also  participated  in  the  development  of  continuing 
legal  education  programs  that  satisfy  the  requirements 
for  mandatory  continuing  legal  education  on  ethics 
issues. 

I  have  served  as  a  member  of  the  Middle  District  of 
Pennsylvania  Lawyers'  Advisory  Committee.  The  Committee 
meets  with  the  Chief  Judge  of  the  District  on  a  quarterly 
basis.  Members  of  the  Committee  also  attend  the  Third 
Circuit  Judicial  Conference.  The  Committee  serves  as  an 

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advisory  group  with  respect  to  procedural  and  other 
practice-related  issues.  For  example,  during  the  time 
that  I  have  served  on  the  Committee  we  have  provided 
advice  with  respect  to  the  establishment  of  a  Law  student 
Practice  Rule. 

In  March  of  1993  I  was  appointed  to  the  Civil  Justice 
Reform  Act  Committee  for  the  Middle  District  of 
Pennsylvania.  Our  group  meets  on  a  periodic  basis  and 
has  finalized  a  Civil  Justice  Reform  Act  Plan  for  the 
Middle  District. 


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UNITED  STATES  SENATE 

COMMITTEE  ON  THE  JUDICIARY 

QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 


II.   FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST  (PUBLIC) 


1.  List  sources,  amounts  and  dates  of  all  anticipated 
receipts  from  deferred  income  arrangements,  stock, 
options,  uncompleted  contracts,  and  other  future 
benefits  which  you  expect  to  derive  from  previous 
business  relationships,  professional  services,  firm 
memberships,  former  employers,  clients,  or 
customers.  Please  describe  the  arrangements  you 
have  made  to  be  compensated  in  the  future  for  any 
financial  or  business  interest. 

Pursuant  to  a  letter  agreement  dated  August  12,  1993,  my 
former  law  firm,  Dilworth,  Paxson,  Kalish  &  Kauffman,  has 
agreed  to  pay  me  a  total  of  $5,000  in  1994  in  four 
quarterly  installments.  This  payment,  as  well  as  a 
$1,500  payment  received  in  October  of  1993,  is  in 
recognition  of  the  fact  that  the  recent  settlement  of  a 
contingent  fee  case  resulted  in  a  substantial  fee  to  the 
Dilworth  law  firm. 

Discussions  pertaining  to  payment  of  a  sum  certain  in 
recognition  of  my  contributions  to  my  present  firm  during 
1993  and  as  compensation  for  the  value  of  my  interest  in 
the  firm  are  presently  ongoing.  It  is  hoped  that  any 
payments  will  be  completed  prior  to  my  departure  from  the 
firm.  If  not,  both  sides  have  agreed  that  any  payments 
will  be  completed  within  3  years  of  my  departure,  and  no 
payments  will  be  contingent  upon  the  occurrence  of  any 
event  or  outcome  of  any  litigation. 


Explain  how  you  will  resolve  any  potential  conflict 
of  interest,  including  the  procedure  you  will 
follow  in  determining  these  areas  of  concern. 
Identify  the  categories  of  litigation  and  financial 
arrangements  that  are  likely  to  present  potential 
conflicts-of-interest  during  your  initial  service 
in  the  position  to  which  you  have  been  nominated. 


In  determining  those  situations  that  mandate 
disqualification  or  require  a  careful  evaluation  of  the 
circumstances  to  determine  whether  recusal  is  warranted, 
I  will  be  guided  by  the  Canons  of  the  Code  of  Judicial 

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Conduct  of  United  States  Judges,  statutes  governing 
disqualification  of  United  states  Judges,  28  U.S.C.  §§144 
and  455,  advisory  rulings  of  the  Committee  on  Codes  of 
Conduct  of  the  Judicial  Conference  of  the  United  States, 
and  applicable  case  law. 

I  anticipate  that  during  my  initial  service  in  the 
position  to  which  I  have  been  nominated  conflicts  of 
interest  will  arise  if  cases  in  which  either  the  Dilworth 
law  firm  or  my  present  law  firm  are  counsel  of  record  for 
any  parties.  I  will  establish  a  procedure  by  which  I 
will  not  be  assigned  cases  in  which  either  of  these  law 
firms  represent  the  complaining  party  for  an  appropriate 
period  of  time  after  the  completion  of  any  financial 
arremgements  involving  each  of  the  firms.  I  will  also 
establish  a  screening  procedure  to  insure  prompt  recusal 
for  that  period  of  time  once  it  is  determined  that  either 
firm  is  involved  in  the  litigation  on  behalf  of  a 
defendant. 

Mandatory,  non-waivable  disqualification  is  essential 
where,  inter  alia,  the  judge  has  "a  personal  bias  or 
prejudice  concerning  a  party,  or  personal  Icnowledge  of 
disputed  evidentiary  facts  concerning  the  proceedings," 
28  U.S.C.  §455(b)(l);  or  "[wlhere  in  private  practice  he 
served  as  a  lawyer  in  the  matter  in  controversy  or  a 
lawyer  with  whom  he  previously  practiced  law  served 
during  such  association  as  a  lawyer  concerning  the 
matter,  or  the  judge  or  such  lawyer  has  been  a  material 
witness  concerning  it."  28  U.S.C.  §455(b)(2).  A 
screening  procedure  will  be  established  to  determine 
whether  mandatory  non-waivable  disqualification  grounds 
exist.  If  such  grounds  exist,  prompt  notification  of  my 
recusal  will  be  made  to  counsel  for  all  parties. 

In  those  instances  when  litigation  is  assigned  to  me  that 
involves  parties  previously  represented  by  me  or  my  law 
firm  in  matters  luxrelated  to  the  assigned  case,  the  fact 
of  my  or  my  law  firm's  prior  representation  of  a  party  to 
the  litigation  will  be  promptly  and  fully  disclosed,  and 
I  will  recuse  myself  if  any  party  objects  to  my  continued 
involvement  in  the  litigation.  Even  if  no  party  objects, 
I  will  recuse  myself  if  I  conclude  that  a  reasonable 
person  possessing  Icnowledge  of  all  the  circumstances 
would  "harbor  doubts  about  [my]  impartiality."  Huff  v. 
Standard  Life  Ins.  Co..  683  F.2d  1363,  1369  (11th  Cir. 
1982)  . 

I  also  recognize  that  it  is  my  obligation  to  inform 
myself  about  personal  and  fiduciary  financial  interests 
of  not  only  myself,  but  also  my  spouse  eind  minor 
children,  to  avoid  the  appearance  of  impartiality.  See  28 

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U.S.  §455(c).  In  this  regard,  there  are  no  "financial 
arrangements"  to  which  I  am  presently  a  party,  other  than 
those  involving  my  former  and  present  lav  firms,  that  I 
perceive  are  likely  to  present  potential  conflicts-of- 
interest  during  my  initial  service  as  a  district  court 
judge. 


3.  Do  you  have  any  plans,  commitments,  or  agreements 
to  pursue  outside  employment,  with  our  without 
compensation,  during  your  service  with  the  court? 
If  so,  explain. 

No. 


4.  List  sources  and  amounts  of  all  income  received 
during  the  calendar  year  preceding  your  nomination 
and  for  the  current  calendar  year,  including  all 
salaries,  fees,  dividends,  interest,  gifts,  rents, 
royalties,  patents,  honoraria,  and  other  items 
exceeding  $500  or  more  (If  you  prefer  to  do  so, 
copies  of  the  financial  disclosure  report,  required 
by  the  Ethics  in  Government  Act  of  1978,  may  be 
substituted  here.) 

See  the  attached  Financial  Disclosure  Report,  Form 
AO-10,  Rev.  1/93. 


5.    Please  complete  the  attached  financial  net  worth 
statement  in  detail  (Add  schedules  as  called  for) . 


See  attached. 


6.  Have  you  have  held  a  position  or  played  a  role  in  a 
political  campaign?  If  so,  please  identify  the 
particulars  of  the  campaign,  including  the 
candidate,  dates  of  the  campaign,  your  title  and 
responsibilities . 

I  have  served  as  Counsel  to  Governor  Robert  P.  Casey's 
Campaign  Committee  since  1986.  My  responsibilities 
included  communication  with  the  Pennsylvania  Bureau  of 

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Elections  and  rendering  advice  on  the  Pennsylvania 
Campaign  Finance  Law.  I  reviewed  Campaign  Expense  and 
Contribution  Reports  for  compliance  with  Pennsylvania 
law. 

I  previously  served  on  the  Finance  Committee  for  Gerald 
Stanvitch,  a  candidate  for  the  Mayor  of  Scranton  in  1993. 


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UNITED  STATES  SENATE 

COMMITTEE  ON  THE  JUDICIARY 

QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 


III.   GENERAL  (PUBLIC) 


1.  An  ethical  consideration  under  Canon  2  of  the 
American  Bar  Association's  Code  of  Professional 
Responsibility  calls  for  "every  lawyer,  regardless 
of  professional  prominence  or  professional 
workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have 
done  to  fulfill  these  responsibilities,  listing 
specific  instances  and  the  amount  of  time  devoted 
to  each. 

I  have  accepted  appointments  to  represent  indigent 
criminal  defendants  and  indigent  federal  and  state 
prisoners.  The  most  recent  occasion  was  in  1987 
and  1988,  when  I  was  appointed  by  the  United  States 
Court  of  Appeals  for  the  Third  Circuit  to  represent 
an  inmate  at  the  State  Correctional  Institution  in 
Huntingdon,  Pennsylvania,  contesting  his  long  term 
incarceration  in  "administrative  segregation."  I 
devoted  more  than  100  hours  to  the  pursuit  of  that 
appeal . 

I  accepted  an  appointment  by  the  Third  Circuit  to 
represent  an  indigent  prisoner  in  appealing  from  a 
federal  court  conviction  (United  States  v. 
Frankenberry ,  696  F.2d  239  (3rd  Cir.  1982)),  and  an 
appointment  by  the  district  court  to  represent  an 
indigent  defendant  in  a  federal  court  trial.  In 
each  instance  I  devoted  substantially  more  than  100 
hours  in  representing  those  clients. 

I  have  also  accepted  other  court  appointments  to 
represent  indigent  defendants  that  did  not  proceed 
to  trial. 

I  have  served  pro  bono  as  counsel  to  a  non-profit 
corporation  providing  gymnastics  training  to 
hundreds  of  children  in  our  area.  Our 
representation  was  instrumental  in  establishing 
this  non-profit  training  facility.  I  have 
volunteered  for  the  Laclcawanna  Bar  Association  pro 
bono  project.  I  have  provided  pro  bono 
representation  to  a  n\imber  of  persons  of  low  or 
moderate  income  who  were  unable  to  afford  legal 

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representation . 

I  have  served  as  a  volunteer  on  the  United  Way 
Allocations  Panel  for  Lackawanna  County. 

I  have  served  as  a  coach  in  Little  League  Baseball 
and  youth  basketball  progreu&s. 

I  helped  establish  and  served  as  President  of  Our 
Lady  of  Lourdes  Regional  High  School  Alumni 
Association,  which  has  been  instrumental  in  raising 
money  to  fund  scholarships  for  needy  students. 
Since  1990,  I  have  devoted  well  in  excess  of  200 
hours  to  the  establishment  of  what  is  now  a  very 
successful  alumni  organization. 

I  have  volunteered  as  a  speaker  at  youth  programs 
at  my  children's  grade  school  and  have  served  as  a 
moderator  on  class  trip  progreu&s. 

I  have  devoted  more  than  50  hours  in  establishing  a 
successful  ongoing  CLE  program  for  the  Lackawanna 
Bar  Association. 

Z  devoted  considerable  time  in  preparing  for  and 
delivering  presentations  on  continuing  legal 
education  matters  to  the  members  of  the  Lackawanna 
Bar  Association. 

The  American  Bar  Association's  Commentary  to  its 
Code  of  Judicial  Conduct  states  that  it  is 
inappropriate  for  a  judge  to  hold  membership  in  any 
organization  that  invidiously  discriminates  on  the 
basis  of  race,  sex,  or  religion.  Do  you  currently 
belong,  or  have  you  belonged,  to  any  organization 
which  discriminates  —  through  either  formal 
membership  requirements  or  practical  implementation 
of  membership  policies?  If  so,  list,  with  dates  of 
membership.  What  you  have  done  to  try  to  change 
these  policies? 


I  have  never  belonged  to  any  organisation  which 
discriminates  on  the  basis  of  race,  sex  or 
religion. 


Is   there   a   selection   commission   in   your 
jurisdiction  to  recommend  candidates  for  nomination 

26 


218 


to  the  federal  courts?  If  so,  did  it  recommend 
your  nomination?  Please  describe  your  experience 
in  the  entire  judicial  selection  process,  from 
beginning  to  end  (including  the  circximstances  which 
led  to  your  nomination  and  interviews  in  which  you 
participated) . 

Senator  Harris  Wofford  established  a  Merit 
Selection  Committee  for  the  judicial  vacemcies  in 
the  Middle  District  of  Pennsylveuiia.  The  Committee 
was  comprised  of  11  persons,  who  came  from  a 
variety  of  backgrounds.  I  participated  in  the 
process  established  by  that  Committee,  which 
included  completion  of  a  detailed  questionnaire 
(not  unlike  this  questionnaire) ;  an  initial 
Interview  by  a  three-person  panel  of  the  11  member 
Committee;  submission  of  a  writing  sample;  and  a 
second  interview  conducted  by  the  entire  ll-member 
Committee.  The  Merit  Selection  Committee 
recommended  me  and  5  other  applicants,  from  more 
them  60  applicants,  to  Senator  Wofford.  Senator 
Wofford  selected  me  as  his  recommendation  for  one 
of  the  two  judicial  vacancies  in  the  Middle 
District  of  Pennsylvania 

I  was  evaluated  by  the  American  Bar  Association 
Standing  Committee  on  the  Federal  Judiciary.  The 
evaluation  process  included  completion  of  a 
detailed  questionnaire;  submission  of  evidence  of 
legal  writing  ability;  interviews  of  judges  and 
colleagues  by  a  member  of  the  ABA  Committee;  and  an 
interview  of  me  by  that  member  of  the  ABA 
Committee.  I  have  been  informed  that  a  siibstantial 
majority  of  the  Committee  approved  a  "well- 
qualified'*  rating,  the  strongest  affirmative 
endorsement  provided  by  the  Committee,  while  a 
minority  approved  a  "qualified"  rating. 

I  have  undergone  an  extensive  background 
investigation  by  the  Federal  Bureau  of 
Investigation.  The  investigation  included 
completion  of  a  detailed  questionnaire  and 
interviews  of  neighbors,  friends,  professional 
colleagues,  judges,  and  others. 

I  have  also  completed  questionnaires  of  the 
Department  of  Justice,  and  I  have  participated  in 
extensive  interviews  with  attorneys  in  the 
Department  of  Justice. 

Has  anyone  involved  in  the  process  of  selecting  you 
as  a  judicial  nominee  discussed  with  you  any 

27 


219 


specific  case,  legal  issue  or  question  in  a  manner 
that  could  reasonably  be  interpreted  as  asking  you 
how  you  would  rule  on  such  case,  issue,  or 
questions?   If  so,  please  explain  fully. 


No. 


5.    Please   discuss   your   views   on   the   following 
criticism  involving  "judicial  activism." 

The  role  of  the  Federal  judiciary  within  the 
Federal  government,  and  within  society  generally, 
has  become  the  subject  of  increasing  controversy  in 
recent  years.  It  has  become  the  target  of  both 
popular  and  academic  criticism  that  alleges  that 
the  judicial  branch  has  usurped  many  of  the 
prerogatives  of  other  branches  and  levels  of 
government . 

Some  of  the  characteristics  of  the  "judicial 
activism"  have  been  said  to  include: 


a.  A  tendency  by  the  judiciary  toward  problem- 
solution  rather  than  grievance-resolution; 

b.  A  tendency  by  the  judiciary  to  employ  the 
individual  plaintiff  as  a  vehicle  for  the 
imposition  of  far-reaching  orders  extending  to 
broad  classes  of  individuals; 

c.  A  tendency  by  the  judiciary  to  impose  broad, 
affirmative  duties  upon  governments  and 
society ; 

d.  A  tendency  by  the  judiciary  toward  loosening 
jurisdictional  requirements  such  as  standing 
and  ripeness;  and 

e.  A  tendency  by  the  judiciary  to  impose  itself 
upon  other  institutions  in  the  manner  of  an 
administrator  with  continuing  oversight 
responsibilities. 


It  is  imperative  that  a  district  court  judge  recognize 
that  it  is  the  judiciary's  mandate  to  adjudicate 
disputes,  and  not  to  "solve  problems."  Disputes  must  be 
adjudicated  by  application  of  the  governing  law  to  the 
facts  presented,   not  by  re-writing  the  law  or  by 

28 


220 


considering  hypothetical  facts.  Where  legislation 
requires  a  particular  result,  the  legislation  may  not  be 
re-vritten  to  achieve  what  an  individual  judge  considers 
to  be  a  "more  appropriate"  result. 

The  judiciary  should  not  employ  "the  individual  plaintiff 
as  a  vehicle  for  the  imposition  of  far-reaching  orders 
extending  to  broad  classes  of  individuals."  Although  a 
decision  in  an  individual  case  may  have  applicability  to 
others,  the  extent  to  which  that  decision  is  applicable 
to  others  must  await  presentation  of  appropriate 
controversies  and  consideration  of  particular  factual 
nuances  that  may  distinguish  one  case  from  another. 

Furthermore,  cases  should  be  heard  and  decided  only  when 
brought  by  those  having  the  requisite  stake  in  the 
outcome  and  where  there  exists  the  necessary  adversity  of 
interests  among  the  litigants.  Otherwise,  the  doctrines 
of  standing  and  ripeness  are  perceived  as  mechanisms  by 
which  litigation  becomes  a  vehicle  for  "problem-solving" 
as  opposed  to  concrete  dispute  adjudication. 

While  the  judiciary  should  refrain  from  "impos[ing] 
itself  upon  other  institutions  in  the  manner  of  an 
administrator  with  continuing  oversight 
responsibilities,"  there  are  some  limited  instances  when 
such  action  is  appropriate.  As  a  litigator,  I  have  seen 
the  necessity  to  establish  continuing  judicial  oversight 
where  resolution  of  a  dispute  involves  regulation  of  the 
conduct  of  the  parties.  Continuing  oversight 
responsibilities  have  long  been  recognized  as  appropriate 
where  conduct  of  private  parties  or  governmental  entities 
imperils  the  economic  or  individual  rights  of  affected 
parties. 

In  short,  Z  believe  it  is  the  mandate  of  the  judiciary  to 
resolve  concrete  disputes  presented  by  parties  having  the 
requisite  adversity  of  interests  and  stake  in  the  outcome 
of  the  litigation.  Where  necessary,  the  relief  decreed 
by  the  judiciary  must  be  adequate  to  safeguard  the  rights 
of  the  prevailing  parties  without  resulting  in  excessive 
judicial  entanglement  in  the  other  bremches  of 
government. 


Z9 


221 


MTIPAYIT 


I  ~T~H-cMA^       :r.    l/AA//iS/^^t^ ,  do  swear  that 

the  information  provided  in  this  statement  is,  to  the  best  of  my 
knowledge,  true  and  accurate. 


Nov.    /^.   n^z 


(DATE) 


'TJZ.^J  iA^^^~J^ 


(NAME) 


/[JuLyuoM    f.    AUMyCZ^ 


(NOTARY) 


30 


222 


FINANCIAL  DISCLOSURE  REPORT 


»«tiun  Raqolrvd  »r  <»■  nttica 

tMSoim  Act   of    1919,    Pub.    L.    lo. 

101.194,      »llif  riT    10,    19(9 

a  u.a.c.A.  App.  e,  (iioi-112) 


1.   Parsoa  Rsportiag   (I^asl  oAaa,    tint.,   alddl*  lolci«l) 

Vanaskie,    Thomas   I. 

2.   Court  or  Organliatlon 

3.   OaL*  of   Raport 

11/18/93 

4.    Title      (Article    III    ^\icgmn   Indlcaca   «ctlv«  or 

aenlor   status:    Mdglttra^a   Judgaa    indicate 
fui--   or   par'-tuiel 

5.    Report  "Typm   (chacfc  appropriata   typa) 
X    KoBlMtlon,    Data   11/17/93 
Inltlai        Annual        Pioal 

6.    Raporclng  Pazlod 

1/1/92    to    10/31/ 

7.   CTiABbmzt  or  Offiza  Adorata 

12'?   N.    Washington  Ave. 

600    Penn   Security  Bank   Bldg. 

Scranton,    PA   18503 

8.    On   tna   Daaia   of   tna   loforaatloo  coouload   io   CAia   daport.    It 
la,    Xa  sy  opinion.    In  coapllanca  wltA  applicabla   lawa   and 
ragulatieoa 

Reviawlng  Offlcar  Slonatura 

IMPORTANT    NOTES:      The    instructions     accompanying     this  form    must   be  foUowftL    Complete  all  parts, 
checking  the  NONE  box  for  each  section  where  you  have  no  reportable  information.    S^    on  last  page. 

93 


I.     POSITIONS.     fReponing  individual  only;  see  pp.  7.s  of  Instructions.) 

POSITION  NA.ME  OF  ORGANtZATlON/ENnTY 

I  I       NONE       (So  reporubla  poalclona) 

1/1/91-3/20/92      Partner  Dilworth,    Paxson,    Kalish  b   Kauffman 


3/21/92-Present   Director 


Elliott,    Vanaskie   &    Riley 


5/91-Present   Director 


Our  Lady  of   Lourdes   Regional  Bigh  School  Aluinni  Assoc. 


i!       AGREEMENTS.     (Reporting  individual  only,  s..s  p.  S-9  of  Inilructions.) 
O^'I'H  I'ARTIES  .\.ND  TERMS 


.om; 


\3  raportAbla  jgreamanca) 


A.)  8/12/93  Agreement  with  Dilworth,  Paxson,  Kalish  &  Kauffman  requiring  payment  tc  -e  of 
55,000  in  4  quarterly  installments  during  1994. 


B.)  Participant  in  Dilworth,  Paxson,  Kalish  &  Kauffman  Retirement  plan 

■!.    ..C-.\-    ..  H3TMENT  INCOME.    ,.:.^ 


Da; 


soL'RCE  A\  ->  -•?■; 


al  and  spouse;  see  pp.  9-12  of  In»;ru^'. 

r.X'    '-    \COME 
l\>;.r^        •  -pouse's) 


••iiini.-rar'.j  .  ?a\.) 

I I      M).\E 

1/1/92-3/20/92      Dilworth,  Paxson,  Kalish  i    Kauffman  (Parntership  Income)  543,.. ■ 


rd=crtabla  -or.-'.nveataont  i.-.c..:«' 


3/21/92-12/31/92    Elliott,  North,  Siedzikowski  &  Vanaskie,  P.C.  (Salary)    $122. -tS 


1/1/93-10/31/93     Elliott.  North.  Siedzikowski  &  Vanaskie.  P.C.  (Salary)    Slil.-- 
4 

in/q-^ Dilworth,  Paxson,  Kalish  i   Kauffman  (contract  payment)   Sl.sc: 


223 


FIN;Q<CIAL  disclosure  report  (cont'd) 


UaMm  of  Pttrson  fl«portla9 
Vanaskie,    Thomas    r. 


Mta  at 


%  i.r.~ 


^ii  • 


IV.    REIMBURSEMENTS  and  GIFTS-  transportation,  lodging,  food„^ntQrtainment 

(Includes  those  to  spoa»e  and  dependent  children:  use  the  parentheticals  "(S)"  and  "(pC)'  to  Lndlcate  reportable 
reimbursemenlx  and  gifts  received  by  spouse  and  dependent  chiidren,  respectively.    See  pp.13-15  of  Inslructjoiu.) 

SOUKCE  _    DESCRIPTION. , ...^ „  .    _ .    -  ^.— — 


Q 


'        NONE        (No   such   rttportabla   r«labur««a«nt.a  gx  glftaj 
EXEMPTED 


■9?  -..^^l«r«  -ttfi! 

- 

■w^/-^     •"   C!.H  aV0 

^_.^.     .      „« 

■^«»i  -:*#i-  /^«ms«n  r^v*f>*— ^'  . 

_     -- 

^■•s,  ..     -^?»»»#   :'-«  '^■»-'     - 

,..    ---.»_., ;^,,- 

V.     OTHER  GIPTS.     (includes  those  to  spons»  and  depfndrnt  fhlhtot'  lisF'the  pareiitEetiaUs  "(S)'  and  '(DC)'  to 
^^  indicate  other  gifts  received  by  spouse  and  dependent  children,  leiptctltely. 


Q 


SOURCE 

^    I        NONE        (NO   sucB   caporubla   glft«) 


DESCRIFIB3N 


^ee'Pp.15-16  of  Instructions.) 

VALUE 


EXEMPTED 


-_  $_ 


VI.      LIABILITIES,      (includes  those  of  spouse  and  dependent  children;  indicate  where  applicable,  person  R-vp<insible 
for  liability  by  using  the  parenthetical  "(S)"  for  separate  liabilitv  of  spouse,  "(J)"  for  Joint  liability  of  rxjjorting 
individual  and  spouse,  and  '(DC)*  for  liability  of  a  dependent  child.    See  pp.L6-l8  of^Instnictions.) 


n 


CREDITOR 


NONE        iHo  reportabla   llabilltlaa} 


DESCRIPTION 


\  M  M  CODE* 


1  2/92  Loan  from  my  retirement  account  under  the  Dilworth,  Paxson,  Kalish 
&  Kauffman  Retirment  Plan^ 


VALUI  COOIS:    J  -  SIS.OOO  or  laaa         I  -  S15,0Ol  to  S50.000        I  •  350,001  to  SIOO.OOO     M  •  5100.00: 
H  ■  5250,001  to  5500,000   o  •  $500,001  to  SI,0C0.000   P  -  Mora  tttan  51,000,000 


224 


FINANCIAL  DISCLOSURE  REPORT  (canfd) 


■•■•  of  Fftrvoa  RapordDQ 

Vanaskie ,  Thomas  J  - 


^A.iT.r.^h'^ 


D«c«  Of  Raport 

11/18/93 


VII.    INVESTMENTS  and  TRUSTS  -  income,  value,  transactions,    (includes  those  of  spouse 

and  dependent  children;  see  pp.  lft.27  of  Instructions.) 


CXBcrlprlon  of  A«a*ts 

(liieliidlng  trust  *m—ZM) 

Indicate,    wbara  appllcabla,    ovn«r   of 
cha  aaBat   Cry  ualag   tJia   oAranthacical 
"(J)'    far   lolnt   ownar»hlp  of    report- 
ing  indiviauai    And    Bpouaa,    *[Sj"'    for 
■•p«r«ta    owfiaratup    by    apouaa,    *(DC)" 
for   owns   «nip   Dy  dapaiulant   calld. 

Plac*  '(X)'  afCftT  aACh  aaavt 
cxaapt  iroB  prlojr  discloaura. 

B. 

Incon* 

during 

raportlng 

parlotf 

1 

c. 

Oroaa   valoa 
at  end   of 

0. 
Traaaaetlona  during  raportLog  parlod 

IK 
coaa' 

l»-B) 

(2) 

dij.; 

raat  ox 
lot.r 

(I) 

Valoa? 
Coda'' 
(J-P) 

(2) 

valua 

Matnod,. 

Coda^ 

buy, a* 11. 
aargar. 

tlonT 

It  nov  aj(»«pt   troB  dlacloaura                | 

LIL: 

Hontb- 

Day 

(3) 

Valoa, 

Coda^ 
tJ-Pl 

(«) 

Gain, 
coda' 

Tdantlty  of 
bavar/aallar 
(il   privata 
traoaaetioQl 

NONE     (Ko  raport«bla 
IncoMa,    aaaata,    or 

1/1/92    -    12/31/92    - 

C 

Div. 

L 

T 

EXE 

M     P 

T 

Exempt 

Dilworth,    Paxson, 

Kalish    &    Kauffman 

Retirement  Account 

1/1/93    -    10/31/93 

C 

Div. 

L 

T 

EXE 

M     P 

T 

Exempt 

Dilworth.    Paxson. 

8 

9 

Retirement  Account 

10 

"  1/1/92    -    12/31/92 

A 

Int. 

J 

T 

EXE 

M     P 

T 

Exempt 

Penn   Security   Dank   & 

11 
Trust   Co.,    Accounts 

1 

5244-732-1    and 

1 

58700 

1 

-.5 

j 

17 

1/1/93    -    10/31/93 

A    " 

Int. 

J 

T 

EXE 

M     P 

T 

1 

! Exempt 

Penn  Security   Bank   & 

1 
1 

19 

Trust   Co.,    Accounts 

20 

■S244-7T7-1 

1   Inco«»/o»lB  CodMi        »-Sl,000  or   lua                    B-S1,001  to  S2.500                    C-S2,50l  to  5,000                      D-S5.301      -              '^ 
rsaa    Col.    B^    t    D«)         E-S15.001    to    SSO.OOO              F-SSO,001    to    S'.OO.OOO                C-5'.00,001    to    51,000,000         S-Mor«    If-                   :    :00 

T"va'nS"co<i««i                 J-sl5,846  or  !•••               K-si5,<ioi  to  >5i,86o             L-i5o,66i  to  sioo.ooo           s-sico,:.;            ...oao 

'Smm  Col.    CI    t    D31         N-S250,001    to    SSOO.OOO        CHS5QO,001    to    SI. 000. 000        P-Hora    "lan    SI. 000. 000 

1   Valaa  Hatbod   Codaat      Q-Appralsal                                 R-Coat    (raal    c^tjta  only)      3"Aaaa»iBant                                   T-Caeh/Ka^ ^.; 
(Saa  Col.  C2)                  U-BooH  Valoa                            v^othar                                          w-Sitlaatad 

225 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


\mmm  of   P«r*an  lUporrlag 

Vanaskie,    Thomas    I. 


Oat*  oC  ] 

11/18/93 


VIII.    ADDITIONAL  INFORMATION  or  EXPLANATIONS.    (ia<uci«< 


pait  of  Report.) 


VII. 

Investments 

m 

my 

retirement 

account 

are  self-dj.rectedt 

bu^^are  not 

owned  individually 

by 

me 

or  my 

spouse. 

"An 

accpunt  statement,  f 

or  the 

month 

ending 

September  30, 

1993 

...  the 

most 

current 

statement' in  my  possession. 

is- attached 

hereto 

as 

Exh 

ibit 

"A". 

The 

account  statement ' identifies 

the 

investments 

in  my  retirement,  account  as, 

i)XlO/31/93._"t":-' 

-"  -  • .  ^-i  ^  x;  z^  ■  I   .   .1 

.  ..,  - 

^_ 

--■'-■■'              -  ■         :.-. 

IX.  CERTIFICATION.      .-             .r     .  ■  -  -  -^  ■ 

In  compliance  with  the  provisions  of  28  U.S.C.  §  455  and  of  Advisory  Opinion  No.  57  of  the  Advisoiy  Committee  on 
Judicial  Activities,  and  to  the  best  of  my  knowledge  at  the  time  after  reasonable  inquiry,  I  did  not  perform  any  adjudicatory 
function  in  any  btigation  during  the  period  covered  by  this  report  in  which  I,  my  spouse,  or  my  minor  or  dependent  children 
had  a  financial  interest,  as  defined  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigation. 

I  certify  that  all  information  given  above  (including  infurmaiion  pertaining  to  my  spouse  and  minor  or  dependent  children, 
if  any)  is  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  belief,  and  thai  any  information  not  reported  was 
withheld  because  it  met  applicable  statutory  provisions  pi.rmitiing  non-disclosure. 

I  further  certify  thai  earned  income  from  outside  (.t^n'.'vnLni  and  honoraria  and  the  acceptance  of  gifts  which  have  been 
reported  are  in  compliance  vnth  the  provisions  of  5  L  >  i  \  jpo.  7,  §  501  et.  seq.,  5  U.S.C.  §  7353  and  Judicial  Cooferenoe 
re<>ulations. 


Signature l_ 


Date 


NOTE:      ANY  LNDIVTDUAL  WHO  KNOWINGLY 
.\1AY  BE  SUBJECT  TO  CIVIL  ANT)  CRLMINAL  S A 


■^  I L FULLY  FALSIFIES  OR  FAILS  TO  RLE  THIS  REPORT 
■    NS  (5  U.S.C.A.  APP.  6,  §  104,  AND  18  US  C.  !)  UX)1.) 


RLING  '^STRUCnONS: 


Mail  signed  original  and  3  additional  copies  u< 


Judicial  Ethics  Committee 
Administrative  Office  of  the 

United  States  Courts 
Washington,  DC   20544 


226 


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Real  estate  owned  ia  lln^^ted  to  our  pejrsoaaljresidence  located, 
at  102  Possun  Hay,  Clarks  Green,  Pennsylvania. 

The  real  estate  mortgage  payable  is  secured  by  our  residence 
and  is  payable  to  Greentree  Mortgage  C6npanyt,^7600  ^omas  Parkway, 
Mount  Laurel,  New  Jersey. 

The  secured  note  is  payable  to  Mellon  Bank,  N.A.,  Scranton, 
Pennsylvania . 

The  note  payable  to  banks-unsecured,  is  payable  to  PNC  Bank, 
Scranton,  Pennsylvania.  "    1- 

The  notes  payable  to  others  is  payable  to'  William  Eynon, 
Dunmore,  Pennsylvania.  •- -  • .  t,!_ 

Accounts  and  bills  due  are  as  follows: 

Prinerica  Mastercard  -  $  4,900.00 

Citibank  VISA  -  "T.  Ibt .  00  '' "" -       .r-., - 

Sears  -  500.00 

Bon-Ton  -  100.00 

J.C.  Penney  -  100.00 

The  chattel  mortgage  is  the  note  secured  by  an  autcnnobilc  and 
payable  to  PMC  Bank  of  Scranton,  Pennsylvania. 


230 


UNITED  STATES  SENATE  QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 
I.    BIOGRAPHICAL  INFORMATION  (PUBLIC) 

1.  Full  name  (include  any  former  names  used.) 

Helen  Georgena  Roberts  Berrigan  (nickname:  Ginger) 

2.  Address:   Place  of  residence  and  office: 

Home:     4319  Hamilton  Street,  New  Orleans,  La.  70118 
Office:    Suite  2150  Energy  Centre,  1100  Poydras  Street, 
New  Orleans,  Louisiana,  70163-2150 

3.  Date  and  place  of  birth: 

April  15,  1948,  New  Rochelle,  New  York 

4.  Marital  Status;  (include  maiden  name  and  husband's  name. 
List  spouse's  occupation,  employer's  name  and  business 
address) 

Married:  Joseph  E.  Berrigan,  Jr.  My  husband  is  an 
attorney  and  the  senior  partner  of  the  law  fiirm  of 
Berrigan,  Litchfield,  Schonekas,  Mann  &  Clement,  Suite 
2150  Energy  Centre,  1100  Poydras  Street,  New  Orleans, 
La.  70163-2150. 

5.  Education;  List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees 
received,  and  dates  degrees  were  granted. 

University  of  Wisconsin,  1965-69,  B.A.  1969  in  Psychology; 

American  University,  Washington,  D.C.,  1970-71,  M.A. 
1971  in  Communications; 

Louisiana  State  University,  1974-77,  J.D.  1977  in  Law. 

6.  Employment  Record;    List   (by  year)   all  business  or 
professional  corporations,  companies,   firms  or  other 
enterprises,   partnerships,   institutions   and  organi- 
zations, nonprofit  or  otherwise,  including  firms,  with 
which  you  were  connected  as  an  officer,   director, 
partner,  proprietor,  or  employee  since  graduation  from 
college. 

1978-present  -  Associate  attorney,  law  firm  of  Gravel 
Brady  &  Berrigan,  New  Orleans,  Louisiana; 

1990-1993  -  Contract  attorney  with  the  Jefferson  Parish 
Indigent  Defender  Board,  Gretna,  Louisiana; 


231 


Page  2 

6.    Employment  Record; 

1984-present  -  Of  counsel  to  the  law  firm  of  Berrigan, 
Litchfield,  Schonekas,  Mann  &  Clement,  New  Orleans, 
Louisiana; 

1977-1978  -  Staff  attorney,  Governor's  Pardon,  Parole  and 
Rehabilitation  Commission,  Baton  Rouge,  Louisiana; 

1975-1977  -  Law  clerk,  Louisiana  Department  of 
Corrections; 

1973-1974  -  Assistant  to  Charles  Evers,  civil  rights 
leader  and  Mayor  of  Fayette,  Mississippi; 

1972-1973  -  Legislative  aide  (part-time,  unpaid), 
Senator  Joseph  E.  Biden,  D-Delaware,  United  States 
Senate,  Washington  D.C.; 

1971-1972  -  Staff  researcher  (part-time,  unpaid) ,  Senator 
Harold  E.  Hughes,  D-Iowa,  United  States  Senate, 
Washington  D.C.; 

1971  -  Graduate  assistant.  Department  of  Communications, 
American  University,  Washington,  D.C.; 

1970  -  Administrative  secretary,  Boston  College,  Chestnut 
Hill,  Massachusetts; 

1969  -  Staff  Assistant,  University  of  Wisconsin  Extension 
Madison,  Wisconsin. 

7.  Military  Service:  Have  you  had  any  military  service?   No. 

8.  Honors  and  Awards;  List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that 
you  believe  would  be  of  interest  to  the  Committee. 

None. 

9.  Bar  Associations;  List  all  bar  associations,  legal  or 
judicial  related  committees  or  conferences  of  which  you 
are  or  have  been  a  member  and  give  the  titles  and  dates 
of  any  offices  which  you  have  held  in  such  groups.  - 

1977-present  -  Louisiana  State  Bar  Association;  1983, 
Chairman  of  the  Criminal  Law  Section. 

1986-present  -  Bar  Association,  Federal  Fifth  circuit. 


232 


Page   3 

9 .  Bar  Associations: 

1985-present  -  Louisiana.  Association  of  Criminal  Defense 
Lawyers;  1988-1993,  Board  of  Directors; 
1990,  Defense  Attorneys  Assistance 
Committee. 

1987-present  -  Louisiana  Sentencing  Commission,  Member 
(appointed  by  Governor) . 

1988-1990   -  New      Orleans       Association       for      Women 

Attorneys;       Board       Member,        1988-1989; 
Program  Chairman,    1988-1989. 

1986-1988    -  Louisiana       Capital       Defense       Project, 

President. 

10.  Other  Memberships:  List  all  organizations  to  which  you 
belong  that  are  active  in  lobbying  before  public  bodies. 
Please   list  all   other   organizations   to  which  you  belong. 

1989-present  -  Committee  of  21,  President  of  the  Board, 
1990-92; 

1989-present   -   American       Civil       Liberties       Union       of 
Louisiana,    President,    1989-1993; 
Vice-President,    1993-present ; 

1990-present   -   Forum   for   Equality,    Member  of   the   Steering 
Committee,    1991-present ;    Chairman-Elect, 
1992-1993;    Chairman,    1993-present; 

1990-present   -  Amistad  Research   Center,    Tulane 
University,    Member   of   the   Board. 

11.  Court   Admission; 

List  all  courts  in  which  you  have  been  admitted  to 
practice,  with  dates  of  admission  and  lapses  if  any  such 
membership  lapsed.  Please  explain  the  reason  for  any 
lapse  of  membership.  Give  the  same  information  for 
administrative  bodies  which  require  special  admission  to 
practice. 

Court  Date  of  Admission 

1.    Louisiana  Supreme  Court  10/05/77 


233 


Page  4 


11. 


12, 


Court  Admission: 

2.  United  States  District  Court 
Western  District  of  Louisiana 

3.  United  States  District  Court 
Middle  District  of  Louisiana 

4.  United  States  District  Court 
Eastern  District  of  Louisiana 

5.  United  States  Court  of  Appeals 
Fifth  Circuit 

6.  United  States  Army  Court  of 
Military  Review 

7.  United  States  Court  of 
Military  Appeals 


10/15/79 

11/26/79 

1/26/83 

10/01/81 

10/06/81 

7/31/80 


Published  Writings:  List  the  titles,  publishers,  and 
dates  of  books,  articles,  reports,  or  other  published 
material  you  have  written  or  edited.  Please  supply  one 
copy  of  all  published  material  not  readily  available  to 
the  Committee.  Also,  please  supply  a  copy  of  all 
speeches  by  you  on  issues  involving  constitutional  law  or 
legal  policy.  If  there  were  press  reports  about  the 
speech,  and  they  are  readily  available  to  you,  please 
supply  them. 

Louisiana  Criminal  Trial  Practice.  2nd  Edition,  Harrison 
Publishing  Company,  Norcross,  Georgia,  1992; 

Louisiana  Criminal  Trial  Practice  Formulary,  co-compiled 
with  Julian  R.  Murray,  Jr.,  Harrison  Publishing  Company, 
Norcross,  Georgia,  1990; 

Louisiana  Criminal  Trial  Practice,  co-author  with  Julian 
R.  Murray,  Jr.  ,  Harrison  Piiblishing  Company,  Norcross, 
Georgia,  1984; 

"The  Purpose  of  Punishment",  Blueprint  for  Social 
Justice.  Loyola  University  Institute  for  Human  Relations, 
1987; 

"Edward  Livingston  and  American  Penology"  37  Louisiana 
Law  Review  1037  (1977). 

I  have  frequently  been  a  speaker  in  continuing  legal 
education  seminars  sponsored  by  the  Louisiana  State 


234 


Page  5 


University  Law  Center,  Tulane  University  Law  School, 
Loyola  University  Law  School,  the  Louisiana  Judicial 
College,  the  Louisiana  State  Bar  Association  and  the 
Louisiana  Association  for  Criminal  Defense  Lawyers.  In 
connection  with  my  civic  and  community  activity,  I  have 
been  a  speaker  for  several  groups  such  as  the  Junior 
League  of  New  Orleans  and  the  YWCA,  and  have  also 
appeared  on  various  programs  on  public  television. 

13.  Health;  What  is  the  present  state  of  your  health?  List 
the  date  of  your  last  physical  examination. 

My  health  is  good.   My  last  general  exam:  April,  1993. 

14.  Judicial  Office:  State  (chronologically)  any  judicial 
offices  you  have  held,  whether  such  position  was  elected 
or  appointed,  and  a  description  of  the  jurisdiction  of 
each  such  court. 

I  have  not  previously  held  judicial  office. 

15.  Citations:  If  you  are  or  have  been  a  judge,  provide: 
(1)  citations  for  the  ten  most  significant  opinions  you 
have  written;  (2)  a  short  summary  of  and  citations  for 
all  appellate  opinions  where  your  decisions  were  reversed 
or  where  your  judgment  was  affirmed  with  significant 
criticism  of  your  substantive  or  procedural  rulings;  and 
(3)  citations  for  significant  opinions  on  federal  or 
state  constitutional  issues,  together  with  the  citation 
to  appellate  court  rulings  on  such  opinions.  If  any  of 
the  opinions  listed  were  not  officially  reported,  please 
provide  copies  of  the  opinions. 

Not  applicable. 

16.  Public  Office:  State  (chronologically)  any  public 
offices  you  have  held,  other  than  judicial  offices, 
including  the  terms  of  service  and  whether  such  positions 
were  elected  or  appointed.  State  (chronologically)  any 
unsuccessful  candidacies  for  elective  public  office. 

In  1987,  I  was  appointed  by  the  Governor  of  Louisiana  to 
serve  on  the  Louisiana  Sentencing  Commission^  The 
commission  was  created  by  the  Louisiana  Legislature  to 
promulgate  sentencing  guidelines  in  felony  cases.  I 
still  sei-ve  on  that  Commission,  having  been  reappointed 
twice  by  successive  governors.  Republican  and  Democrat. 
I  have  never  been  a  candidate  for  elective  office. 


235 


Page  6 


17.   Legal  Career: 


Describe   chronologically   your   law   practice   and 
experience  after  graduation  from  law  school  including: 

1.  whether  you  served  as  clerk  to  a  judge: 
I  have  not  served  as  a  clerk  to  a  judge. 

2.  whether  you  practiced  alone: 
I  have  not  practiced  alone. 

3.  The  dates,  names,  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies 
with  which  you  have  been  connected  and  the 
nature  of  your  connection  with  each; 

After  graduating  from  law  school  in  May,  1977, 
I  worked  for  a  year  as  a  Staff  Attorney  for  the 
Governor's  Pardon,  Parole  and  Rehabilitation 
Commission.  This  Commission  was  created  to 
study  the  state  corrections  system  and  make 
legislative  and  administrative  recommendations 
for  improvement.  The  Commission  no  longer  exists. 

In  October,  1978,  I  joined  the  law  firm  of 
Gravel,  Roy  &  Burnes  as  an  associate  attorney. 
I  have  remained  with  that  law  firm  to  the 
present  time.  The  partnership  and  title  of  the 
firm  have  changed  several  times  and  is  most 
recently  Gravel,  Brady  &  Berrigan. 

There  is  a  New  Orleans  branch  where  I  am  the 
sole  attorney.  The  address  is  Suite  2150, 
Energy  Centre,  1100  Poydras  Street,  New 
Orleans,  Louisiana  70163-2150. 

Since  approximately  1985,  I  have  been  "of 
counsel"  to  the  law  firm  of  Berrigan, 
Litchfield,  Schonekas,  Mann  &  Clement,  Suite 
2150,  1100  Poydras  Street,  New  Orleans,  La. 

In  January,  1991,  I  contracted  with  the 
Jefferson  Parish  Indigent  Defender  Board  to 
handle  appeals  of  indigent  criminal  defendants. 
This  contract  expired  in  June,  1993.  The 
address  is  217  Derbigny  Street,  Gretna, 
Louisiana  70053. 


236 


Page  7 


B.    1.    What  has  been  the  general  character  of  your  law 
practice,  dividing  it  into  periods  with  dates: 

The  general  character  of  my  practice  is  and  has 
been  criminal  defense.  This  includes  pretrial 
and  trial  proceedings,  federal  and  state, 
misdemeanor  and  felony.  It  also  includes  post- 
trial  work,  criminal  appeals,  post-conviction 
writs,  and  administrative  matters  such  as 
pardon,  parole,  prison  transfers,  and 
professional  licensing  as  it  is  affected  by 
criminal  conviction.  I  have  handled 
approximately  550  cases  in  my  career. 

B.  2.    Describe   your   typical   former   clients,   and 

mention  the  areas,  if  any,  in  which  you  have  . 
specialized. 

My  "typical"  client  is  a  person  who  is 
criminally  accused  or  convicted,  is  indigent  or 
borderline  indigent,  usually  with  poor 
educational  and  work  skills  and  frequently  of  a 
minority  group.  However,  I  have  also  handled 
so-called  white  collar  cases  which  involved 
businessmen  who  are  well-educated,  skilled  and 
until  that  point  reasonably  successful. 

As  indicated  above,  my  area  of  specialty  is 
criminal  defense. 

C.  1.    Did   you   appear   in   court   frequently, 

occasionally,  or  not  at  all?  If  the  frequency 
of  your  appearances  in  court  varied,  describe 
each  such  variance,  giving  dates. 

I  appear  in  court  on  a  regular  basis.  This 
includes  pretrial  proceedings,  trial  work  and 
post-conviction  court  appearances.  I  also 
appear  before  administrative  bodies  such  as  the 
Pardon  Board,  Parole  Board  or  licensing  boards. 

2.    What  percentage  of  these  appearances  was  in: 

1.  Federal  courts:   approximately  20%  ; 

2.  State  courts  of  record:   approximately  80%  ; 

3.  Other  courts:   Minimal. 


237 


Page  8 


C.    3.    What  percentage  of  your  litigation  was: 

1.    Civil;        ,2.    Criminal; 

Virtually  all  of  my  practice  has  been  in 
criminal  law.  Some  aspects  of  that  litigation 
however  use  civil  rather  than  criminal 
procedural  rules;  such  as  habeas  corpus  and 
administrative  proceedings  such  as  pardon, 
parole  and  professional  licensing.  Early  in  my 
career,  I  handled  a  number  of  civil  cases  which 
were  relatively  simple  -  uncontested  divorces, 
separations,  curatorships .  On  two  occasions,  I 
did  handle  contested  personal  injury  suits  and 
on  one  occasion,  contested  anti-trust  litigation. 

4.  State  the  number  of  cases  in  courts  of  record 
you  tried  to  verdict  or  judgment  (rather  than 
settled) ,  indicating  whether  you  were  sole 
counsel,  chief  counsel,  or  associate  counsel. 

I  have  been  involved  in  3  3  cases  that  were 
tried  to  verdict.  I  was  sole  counsel  in  11  of 
them;  chief  counsel  in  6  more  and  associate 
counsel  in  the  remaining  16. 

5.  What  percentage  of  these  trials  was: 
a)    jury;     b)    non-jury; 

31  of  the  3  3  we;re  jury  trials. 

18 .   Litigation: 

Describe  the  ten  most  significant  litigated  matters  which 
you  personally  handled.  Give  the  citations,  if  the  cases 
were  reported,  and  the  docket  nvaaber  and  date  if 
unreported.  Give  a  capsule  summary  of  the  substance  of 
each  case.  Identify  the  party  or  parties  whom  you 
represented;  describe  in  detail  the  nature  of  your 
participation  in  the  litigation  and  the  final  disposition 
of  the  case.   Also  state  as  to  each  case: 

a.  the  date  of  representation; 

b.  the  name  of  the  court  and  the  name  of  the  judge 
or  judges  before  whom  the  case  was  litigated;  and, 

c.  the  individual  name,  addresses,  and  telephone 
numbers  of  co-counsel  and  of  principal  counsel 
for  each  of  the  other  parties. 


238 


Page  9 
18 .   Litigation: 

1,  United  States  v.  Otto  Passman,  78-CR-30013,  United 
States  District  Court,  Western  District  of  Louisiana, 
Monroe  Division 

Congressman  Otto  Passman  was  indicted  on  charges  of 
accepting  illegal  gratuities  from  Korean  businessman/ 
lobbyist  Tongsun  Park  in  connection  with  Korean  purchases 
of  Louisiana  rice.  He  was  also  charged  with  income  tax 
evasion.  The  charges  were  brought  in  Washington  D.C.  by 
the  Public  Integrity  Section  of  the  United  States 
Department  of  Justice.  The  case  was  subsequently 
transferred  to  Louisiana  for  trial. 

Our  law  firm  represented  Passman.  I  joined  the  firm  a 
few  months  prior  to  trial  and  was  immediately  assigned  to 
work  on  the  case.  I  prepared  extensive  and  detailed 
pretrial  motions  and  also  researched  a  great  deal  on 
Louisiana's  rice  industry,  the  structure  and  functioning 
of  the  Korean  government  and  the  history  of  trade 
between  Louisiana  and  Korea.  The  trial  itself  lasted 
seven  weeks.  I  prepared  witness  packets  for  use  in 
direct  and  cross-examination  and  researched  and  drafted 
memorandums  on  legal  issues  that  arose  during  trial.  I 
also  drafted  the  opening  and  closing  arguments.  Passman 
was  acquitted  of  all  charges. 

My  senior  partner,  Camille  Gravel,  Jr.  was  Passman's 
attorney.  His  address  is  71i  Washington  Street, 
Alexandria,  Louisiana  71309;  Phone. (318)  487-4501.  Lead 
counsel  for  the  Department  of  Justice  was  David  Scott. 
There  were  also  a  Mr.  Silverstein  and  a  Mr.  Cannon 
assisting  him.  All  were  with  the  Public  Integrity  Section 
of  the  Department  of  Justice;  (202)  514-1412.  The  trial 
judge  was  Hon.  Earl  Veron,  now  deceased. 

2.  Schwecrmann  v.  Edwards,  et  al.  No.  223598,  "F",  19th 
Judicial  District  Court,  Parish  of  East  Baton  Rouge, 
State  of  Louisiana 

Schwegmann  Giant  Super  Markets,  a  New  Orleans  grocery 
store  chain,  sued  the  Governor  and  other  Louisiana  public 
officials  to  have  the  state's  "Beer  Cash  Law"  declared 
unconstitutional.  The  law,  La.R.S.  26:741,  prohibits  the 
extension  of  credit  to  beer  retailers  by  wholesalers  for 
purchases  of  beer.  Schwegmann  claimed  the  statue  violated 
due  process,  equal  protection,  the  freedom  to  contract, 
separation  of  powers  and  other  provisions  of  the  United 
States  and  Louisiana  Constitutions. 


239 


Page  10 


2.    Schwecmann  v.  Edwards,  et  al .  No.  223598,  "F",  19th 
Judicial  District  Court,  Parish  of  East  Baton  Rouge, 
State  of  Louisiana 

I  was  appointed  by  the  state  Attorney  General  as  a 
special  assistant  attorney  general  to  help  defend  against 
the  suit.  The  suit  was  filed  in  early  1978,  shortly 
after  I  began  practicing  law.  I  did  extensive  research 
into  the  history  of  the  law  which  related  back  to 
monopolistic  trade  practices  whereby  beer  wholesalers 
gained  control  of  retail  outlets  (bars,  lounges, 
restaurants)  through  manipulation  and  control  of  credit. 
I  also  did  in-depth  research  into  marketing  and  marketing 
techniques,  competitive  and  anti-competitive  practices, 
and  the  financial  structure  and  nature  of  the  liquor 
industry  generally  and  the  beer  industry  in  particular. 
With  respect  to  the  law,  I  also  did  thorough  research 
into  anti-trust  law,  regulation  of  the  liquor  industry, 
the  police  power,  as  well  as  more  generic  principles  of 
constitutional  and  statutoiry  law. 

I  handled  much  of  the  pretrial  pleadings  and  some  of  the 
depositions.  At  a  later  date,  the  case  went  to  trial  and 
the  trial  was  handled  by  other  attorneys.  The  trial 
court  found  the  statute  constitutional,  as  did  the  state 
court  of  appeals.  The  Louisiana  Supreme  Court  declined 
to  hear  the  case  so  the  lower  court  judgment  stood.  The 
trial  judge  was  Hon.  Doug  Moreau,  19th  Judicial  District 
Court.  The  opposing  counsel  were  Michael  Fontham  and 
Richard  Stanley,  with  Stone,  Pigman,  Walther,  Wittmann  & 
Hutchinson,  546  Carondelet  Street,  New  Orleans,  La. 
70130;  phone  (504)  581-3200.  The  state  was  represented 
at  trial  and  subsequently  by  David  Stewart,  Ropes  and 
Gray,  1001  Pennsylvania  Avenue  N.W. ,  Suite  1200-South, 
Washington  D.C.  20004;  phone  (202)  626-3900. 

3.    State  of  Louisiana  v.  Joev  McDaniel.  410  So. 2d  754 
(La.  1982). 

This  was  my  first  jury  trial  as  sole  counsel.  My  client 
JOEY  McDANIEL  was  charged  in  Grant  Parish,  35th  Judicial 
District  Court,  and  in  Rapides  Parish,  9th  Judicial 
District  Court.  The  charges  in  Rapides  parish  were 
resolved  by  a  guilty  plea  to  a  less  serious  offense.. 

We  went  to  trial  on  the  charge  in  Grant  Parish.  I 
objected  to  the  jury  instruction  regarding  the  definition 
of  "reasonable  doubt".  This  instruction  had  been 
commonly  used  for  years  throughout  the  state.  The  judge 
overruled  my  objection  and  the  instruction  was  given. 


240 


Page  11 


State  of  Louisiana  v.  Joev  McDaniel.  410  So.2d  754 
(La.  1982). 

My  client  was  convicted  as  charged.  I  raised  that  issue 
on  appeal  and  the  conviction  was  reversed  on  that  basis. 
It  was  the  first  time  apparently  that  this  particular 
jury  instruction  had  been  challenged. 

McDaniel  became  a  frequently  cited  case  in  subsequent 
chal-lenges  to  other  similarly  worded  jury  instructions. 
While  those  instructions  were  usually  upheld  and  McDaniel 
distinguished,  the  United  States  Supreme  Court  finally 
struck  them  down  in  Cage  v.  Louisiana.  Ill  S.Ct.  328  (1990) 

The  case  was  tried  from  February  23,  1981  through 
February  26,  1981.  The  judge  at  the  trial  was  the  Hon. 
W.T.  McCain  who  is  now  deceased.  The  prosecuting 
attorney  was  Gregory  N.  Wampler  who,  unfortunately,  is 
currently  in  federal  prison.  His  address  is  #07929-035, 
FPC-El  Paso,  Post  Office  Box  16300,  El  Paso,  Texas  79906. 

United  States  v.  Edwin  W.  Edwards.  Crim.  No.  85-078, 
Section  E  (4) ,  United  States  District  Court, 
Eastern  District  of  Louisiana. 

Governor  Edwin  W.  Edwards  was  indicted  along  with  several 
others  in  the  mid  1980 's  for  alleged  fraudulent  conduct 
in  connection  with  the  awarding  of  so-called 
"certificates  of  need"   for  construction  of  privately 
owned,  for-profit  medical  facilities. 

Our  firra  was  retained  by  Governor  Edwards  as  co-counsel 
in  his  representation.  My  role  was  to  research  and 
prepare  pretrial  pleadings  and  memoranda,  analyze  and 
outline  pretrial  recorded  statements  by  the  witnesses, 
and  prepare  direct  and  cross-examination  packets.  I  also 
researched  and  prepared  memoranda  on  issues  that  arose 
during  the  trial. 

The  first  trial  ended  in  partial  acquittals  for  soiae 
defendants  but  was  deadlocked  11-1  for  acquittal  as  to 
the  Governor  and  others.  A  mistrial  was  declared.  My 
role  in  the  second  trial  was  essentially  the  same  as  in 
the  first.  This  time  the  Governor  and  the  others  were 
acquitted  of  all  charges. 

The  first  trial  began  on  September  17,  1985  and  ended  in 
mistrial  on  December  18,  1985.  The  second  trial  began  on 
March  24,  1986,  and  ended  May  12,  1986. 


241 


Page  12 


United  States  v.  Edwin  W.  Edwards.  Crim.  No.  85-078, 
Section  E  (4) ,  United  States  District  Court, 
Eastern  District  of  Louisiana. 

The  prosecuting  attorneys  were  then  United  States 
Attorney  John  Volz,  and  Assistant  United  States  Attorney 
Robert  Boitmann,  United  States  Attorney's  Office,  501 
Magazine  Street,  2nd  Floor,  New  Orleans,  Louisiana  70130; 
telephone  (504)  589-2929,  and  Pauline  F.  Hardin,  now  in 
private  practice  at  Jones,  Walker  Law  Firm,  201  St. 
Charles  Avenue,  New  Orleans,  Louisiana  70170;  telephone 
(504)  582-8110.  The  co-counsel  in  both  trials  was 
Camille  F.  Gravel,  Jr.,  711  Washington  Street, 
Alexandria,  La.  71309,  telephone  (318)  487-4501. 

Chief  counsel  in  the  first  trial  was  James  Neal,  Neal  & 
Harwell,  Suite  2000,  First  Union  Tower,  150  4th  Avenue 
North,  Nashville,  Tennessee  37219;  telephone  (615)  244- 
1713.  Chief  counsel  in  the  second  trial  was  Michael  S. 
Fawer,  2311  Cedar  Springs,  Suite  250,  Dallas,  Texas 
75201;  telephone  (214)  953-1000.  The  judge  in  both 
trials  was  Hon.  Marcel  Livaudais,  Jr. 

State  V.  Bedford  Dovle  Ruff.  504  So. 2d  72  (La.  App. 
2nd  Cir.  1987) 

Our  client  was  BEDFORD  DOYLE  RUFF  who  was  charged  with 
second  degree  murder.  Our  defense  was  justifiable 
homicide. 

My  senior  partner,  Camille  Gravel,  Jr.,  and  I  were  co- 
counsel.  I  handled  the  pretrial  investigation  which 
involved  lengthy  interviews  with  numerous  people  familiar 
with  the  individuals  involved,  their  relationships,  as 
well  as  witnesses  who  were  at  or  nearby  when  the  incident 
took  place. 

We  waived  a  jury  and  elected  to  be  tried  by  the  judge. 
My  senior  partner  and  I  shared  the  examination  of 
witnesses.  The  trial  judge  found  RUFF  guilty  as  charged 
of  second  degree  murder  and  sentenced  him  to  mandatory 
life  imprisonment. 

I  handled  the  appeal  and  raised  three  issues.  One  was 
that  RUFF  should  be  acquitted  because  we  had  established 
justifiable  homicide.  My  second  issue  was  that  RUFF 
should  be  acquitted  of  murder  because  the  mitigating 
factors  of  the  lesser  crime  of  manslaughter  were  present. 
My  third  issue  was  that  we  were  entitled  to  a  new  trial 


242 


Page  13 


State  V.  Bedford  Doyle  Ruff.  504  So. 2d  72 
(La.  App.  2nd  Cir.  1987) 


because  the  state  had  withheld  exculpatory  evidence 
contained  in  civil  depositions  with  respect  to  the  latter 
two  issues,  (assuming  our  claim  of  justifiable  homicide 
was  rejected) .  The  appellate  court  acquitted  RUFF  of 
murder  on  the  basis  that  the  mitigating  facts  of 
manslaughter  had  been  proved,  then  remanded  the  case  for 
a  new  trial  on  the  withholding  of  the  exculpatory  evidence. 

The  case  was  tried  from  March  3,  1986  through  March  7, 
1986.  The  prosecutor  was  and  still  is  the  District 
Attorney,  William  Coenen,  108  Courthouse  Square, 
Rayville,  La.  71269,  telephone  (318)  728-3227.  The  trial 
judge  was  Hon.  Glen  W.  Strong.  My  senior  partner, 
Camille  Gravel,  Jr.  is  at  711  Washington  Street, 
Alexandria,  La.  71309,  Phone  (318)  487-4501. 

State  of  Louisiana  v.  Peter  Hawist.  #36,835 
11th  Judicial  District  Court,  Parish  of  Sabine. 

Our  client,  PETER  HAWIST,  was  a  soldier  charged  with 
first  degree  murder,  carrying  a  possible  death  penalty  if 
convicted.  My  senior  partner,  Camille  Gravel,  Jr.  was 
lead  counsel.  I  handled  the  majority  of  pretrial 
preparation  with  a  young  associate  in  the  firm,  Charles 
G.  Gravel. 

During  the  trial  itself,  my  senior  partner  and  I  shared 
the  examination  of  witnesses  and  I  also  provided  material 
to  my  partner  for  his  examinations.  The  case  was 
prosecuted  by  the  District  Attorney  himself,  Don  Burkett. 

Prior  to  trial,  the  District  Attorney  was  adamant  about 
trying  the  case  as  first  degree  murder  with  exposure  to 
the  death  penalty.  Our  defense  was  justifiable  homicide. 
Towards  the  end  of  our  presentation  of  the  defense,  the 
District  Attorney  disclosed  to  us  that  we  had  created  a 
reasonable  doubt  in  his  mind  and  he  could  not  in  good 
conscience  proceed  with  the  prosecution.  He  then  excused 
the  jury  and  dismissed  all  charges  against  our  client. 

The  case  was  tried  from  March  28,  1988  until  Mareh  31, 
1988  when  charges  were  dismissed.  The  District  Attorney 
was  and  still  is  Don  Burkett  whose  address  is  Post  Office 
Box  1557,  Many,  Louisiana,  71449.  His  telephone  number 
is  (318)  256-6246.  The  judge  was  the  Hon.  John  Pickett, 
Jr.  The  address  for  my  partner,  Camille  Gravel,  is  711 
Washington  Street,  Alexandria,  La.  71309,  (318)  487-501. 


243 


Page  14 


State  ex  rel  Lawrence  v.  Smith.  571  So. 2d  133  (La.  1990) 

In  1978  DAVID  LAWRENCE  -was  convicted  of  second  degree 
murder.  His  conviction  and  sentence  were  affirmed  on 
appeal.  I  was  not  involved  in  any  way  in  his  initial 
trial  or  appeal. 

I  was  retained  by  LAWRENCE  approximately  ten  years  later 
to  determine  if  he  had  any  grounds  to  challenge  his 
conviction.  After  a  review  of  the  evidence,  I  concluded 
LAWRENCE  had  been  wrongfully  convicted  of  murder  when  in 
fact  the  lesser  crime  of  manslaughter  had  been  committed. 

I  filed  an  application  for  post-conviction  relief  on  the 
above  grounds.  It  was  denied  by  the  trial  judge.  I  then 
applied  for  a  supervisory  writ  to  the  Louisiana  Supreme 
Court  which  was  granted.  After  briefing  and  argument,  the 
court  ruled  6-1  that  LAWRENCE  be  acquitted  of  murder  and 
convicted  instead  of  manslaughter. 


The  case  was  remanded  for  re-sentencing, 
re-sentenced  to  21  years  imprisonment. 


LAWRENCE  was 


The  prosecutor  in  the  post-conviction  proceedings  was  Asa 
Skinner,  Assistant  District  Attorney,  Vernon  Parish 
Courthouse,  Leesville,  Louisiana  71446;  telephone  (318) 
239-2008.  The  trial  level  judge  was  the  Hon.  Roy  B. 
Tuck,  Jr. 

State  of  Louisiana  v.  Rov  Bennett.  610  So. 2d  120  (La.  1992] 

Roy  Bennett  was  convicted  of  a  crime.  That  conviction  was 
overturned  by  the  Court  of  Appeals,  rehearing  was  denied, 
and  the  State's  timely  application  to  the  Louisiana 
Supreme  Court  was  rejected.  Bennett  was  set  for  retrial 
over  a  year  after  the  Court  of  Appeals  denied  rehearing. 
The  defendant  contended  however  that  the  one  year  statute 
of  limitations  had  run  and  he  could  not  be  retried.  The 
trial  court  denied  the  motion,  trial  proceeded  and 
Bennett  was  again  convicted.  On  appeal,  the  appellate 
court  reversed  the  conviction,  agreeing  with  the 
defendant  that  prescription  had  run.  Rehearing  by  the 
State  was  denied. 

I  was  contacted  then  by  the  District  Attorney's  Office 
and  retained  to  prepare  an  application  for  a  supervisory 
writ  on  behalf  of  the  prosecution  to  the  Louisiana 
Supreme  Court. 


244 


Page  15 

8.  State  of  Louisiana  v.  Roy  Bfennett,  610  So. 2d  120  (La.  1992) 

In  Louisiana,  the  State  Jias  one  year  from  the  grant  of  a 
new  trial  to  then  coitunence  that  trial .  The  issue  was 
when  that  one  year  period  began,  whether  it  began  with 
the  reversal  on  appeal,  or  upon  the  denial  of  rehearing, 
or  upon  the  denial  of  the  application  for  supervisory  writs. 

The  .issue  involved  detailed  research  into  the 
constitutional  and  legislative  history  of  criminal 
appellate  jurisdiction  and  procedure  in  Louisiana,  and  a 
comparative  analysis  with  civil  appellate  procedure.  I 
used  the  legislative  and  constitutional  history  of 
criminal  appellate  jurisdiction  to  argue  that  the 
legislature  intended  the  rules  of  prescription  to  be  the 
same  for  criminal  and  civil  jurisdiction  and  that  the 
failure  to  expressly  say  so  statutorily  was  a  legislative 
oversight. 

The  Louisiana  Supreme  Court  accepted  the  case,  reversed 
the  Court  of  Appeal,  and  held  that  the  statute  of 
limitation  in  criminal  cases  commenced  with  the  denial  of 
any  application  for  supervisory  review. 

The  District  Attorney  was  and  is  William  Tilley,  the 
Assistant  District  Attorney  is  Asa  Skinner,  Vernon 
Parish  Courthouse,  Leesville,  Louisiana  71446;  (318)  239- 
2008.  Defense  counsel  was  Richard  Burnes,  711  Washington 
Street,  Alexandria,  Louisiana  71301;  (318)  445-0462. 

9.  State  of  Louisiana  v.  Michael  Wilson.  No.  91-4535 
24th  Judicial  District  Court,  Parish  of  Jefferson 

Michael  Wilson  is  an  indigent  indicted  for  first  degree 
murder  in  Jefferson  Parish.  Attorney  MARK  MOLTING  from 
the  Jefferson  Parish  Indigent  Defender  Board  was 
appointed  to  represent  him.  Over  the  subseguent  months, 
NOLTING  met  frequently  with  Wilson  and  filed  numerous 
pretrial  motions. 

Ten  months  after  NOLTING  was  appointed,  the  trial  judge 
summarily  dismissed  NOLTING  as  Wilson's  attorney,  and 
appointed  another  lawyer  outside  of  the  Indigent  Defender 
Board.  No  reasons  were  given.  NOLTING  and  Wilson 
objected  to  the  dismissal. 

As  an  appellate  attorney  on  contract  with  the  Jefferson 
Parish  Indigent  Defender  Board,  I  filed  an  Application 
for  Writ  of  Certiorari  with  the  Fifth  Circuit  Court  of 
Appeal  (No.  92-K-614) .   I  argued  that  the  dismissal  of 


245 


Page  16 


State  of  Louisiana  v.  Michael  Wilson.  No.  91-4535 
24th  Judicial  District  Court,  Parish  of  Jefferson 


NOLTING  breached  Wilson's  right  to  counsel,  and  set  a 
dangerous  precedent  in  undermining  the  independence  of 
appointed  counsel.  I  cited  American  Bar  Association 
standards.  United  States  Supreme  Court  jurisprudence  and 
detailed  case  law  from  other  states  where  other  trial 
courts  had  tried  to  likewise  "fire"  public  defenders  with 
whom  they  were  displeased. 

The  appellate  granted  the  writ,  reversed  the  trial  judge 
and  reinstated  NOLTING  as  Wilson's  attorney. 

The  attorney  who  had  been  appointed  by  the  trial  judge  to 
replace  NOLTING  then  filed  an  Application  for  Writ  of 
Certiorari  with  the  Louisiana  Supreme  Court  (No.  92-KK- 
2434).  The  District  Attorney's  office  then  joined  in  the 
Application  for  Writ.  The  Supreme  Court  summarily 
granted  the  writ,  set  aside  the  ruling  of  the  appellate 
court  and  reinstated  the  trial  court's  dismissal  of 
NOLTING  as  Wilson's  attorney.  I  immediately  filed  an 
Application  for  Rehearing,  presenting  essentially  the 
same  factual  analysis  and  legal  argument  that  I  had 
presented  to  the  appellate  court.  The  rehearing  was 
granted  and  by  a  6-1  decision  the  Court  reversed  itself 
and  reinstated  the  ruling  of  the  5th  Circuit  upholding 
NOLTING 's  continued  representation  of  Michael  Wilson. 

The  prosecuting  attorney  was  Dorothy  A.  Pendergast, 
Assistant  District  Attorney,  5th  floor.  Courthouse 
Annex,  Gretna,  La.  70053;  phone  (504)  368-1020.  The 
attorney  whom  the  trial  judge  tried  to  appoint  to  replace 
NOLTING  was  Camilo  K.  Salas,  III,  201  St.  Charles  Avenue, 
Suite  3500,  New  Orleans,  La.  70170;  (504)  582-1500.  The 
trial  judge  was  the  Hon.  Ernest  V.  Richards,  IV. 

10.   State  ex  rel  Mims  v.  Butler.  601  So. 2d  649  (La.  1992) 

Ira  Joe  Mims  was  convicted  on  the  same  day  in  1978  of  two 
felonies  based  on  separate  incidents.  In  1985,  he  was 
convicted  of  another  felony  and  was  then  adjudicated  a 
third  time  felony  offender  and  sentenced  to  an  enhanced 
punishment  under  Louisiana's  habitual  Offender  Law.  On 
post-conviction,  Mims  contended  that  under  Louisiana's 
Law,  a  person's  offender  status  is  enhanced  only  if  each 
offense  in  seguence  occurred  after  conviction  for  the 
earlier  offense.  The  trial  court  had  allowed  the  third 
offender  adjudication  even  though  Mims'  second  felony 
offense  occurred  before  the  was  convicted  of  the  first. 


246 


Page  17 

10.   State  ex  rel  Mims  v.  Butler.  601  So. 2d  649  (La.  1992) 

The  appellate  court  affirmed  and  so  did  the  Louisiana 
Supreme  Court  on  initial  hearing. 

On  rehearing,  a  number  of  other  entities  became  involved 
as  Amicus  Curiae,  including  the  24th  Judicial  District 
Indigent  Defender  Board  which  I  represented.  The  case 
required  an  analysis  of  the  history  of  Louisiana's 
Habitual  Offender  Law  including  its  various  statutory 
amendments  and  their  interplay  with  the  jurisprudence 
interpreting  the  statutes.  The  goal  was  to  determine 
legislative  intent  in  light  of  the  ambiguous  language  of 
the  statue  itself  and  the  statutory  and  jurisprudential 
history. 

Rehearing  was  granted  and  the  lower  court's  decisions 
were  reversed.  The  court  found  that  the  statute  did 
require  the  sequential  offense-conviction-offense  before 
a  person  could  be  adjudicated  an  habitual  offender. 

Elizabeth  Cole  and  Terry  Albritton  of  the  Tulane  Law 
Clinic,  Tulane  University,  New  Orleans,  Louisiana  70118, 
Telephone  number  (504)  865-5153,  represented  Mims.  The 
state  was  represented  by  Catherine  Estopinal,  Assistant 
District  Attorney,  First  Judicial  District  Court, 
Shreveport,  Louisiana  71101,  Telephone  number  (318)  226- 
6826.  Amicus  Briefs  were  filed  by  Lennie  Perez,  729 
Royal  Street,  Baton  Rouge,  Louisiana  70802,  Telephone 
number  (504)  387-1287,  on  behalf  of  the  19th  Judicial 
District  Public  Defender  Office;  G.  Paul  Marx,  Post 
Office  Box  3622,  Lafayette,  Louisiana  70502,  Telephone 
number  (318)  232-9345,  on  behalf  of  the  15th  Judicial 
District  Public  Defender  Office;  John  LaVern,  326  Pujo 
Street,  Suite  505,  Lake  Charles,  Louisiana  70602, 
Telephone  number  (318)  436-1718,  of  the  14th  Judicial 
District  Public  Defender  Office;  Paul  Adams,  Jr.,  1645 
Nicholson  Drive,  Baton  Rouge,  Louisiana  70802-8143, 
Telephone  number  (504)  343-0171,  of  the  Louisiana 
District  Attorney's  Association;  and,  Robert  Glass,  228 
Lafayette  Street,  New  Orleans,  Louisiana  70130,  Telephone 
number  (504)  581-9065,  on  behalf  of  the  Louisiana 
Association  of  Criminal  Defense  Lawyers.  The  trial  judge 
was  Hon.  Carl  Stewart,  First  Judicial  District  Cour-t. 


247 


Page  18 

19 .   Legal  Activities: 

Describe  the  most  significant  legal  activities  you  have 
pursued,  including  significant  litigation  which  did  not 
progress  to  trial  or  legal  matters  that  did  not  involve 
litigation.  Describe  the  nature  of  your  participation  in 
this  question,  please  omit  any  information  protected  by 
the  attorney-client  privilege  (unless  the  privilege  has 
been  ^waived. ) 

Probably  my  most  significant  legal  activity  outside  of 
litigation  is  the  researching  and  annual  updating  of  my 
book,  Louisiana  Criminal  Trial  Practice.  This  is  a  one 
volume,  nearly  600  page,  compilation  of  the  statutory  and 
jurisprudential  law  of  criminal  procedure  in  this  state, 
from  arrest,  through  pretrial  and  trial  matters, 
including  all  evidentiary  issues,  and  ending  with  post- 
conviction relief  and  administrative  release.  It  is  a 
book  widely  used  throughout  the  state  by  prosecutors  and 
judges  as  well  as  defense  lawyers. 

I  have  also  had  a  large  pardon  and  parole  practice  where 
I  represent  prisoners  hoping  to  obtain  early  release 
through  these  administrative  remedies.  It  requires  not 
only  a  thorough  knowledge  of  the  original  facts  of  the 
offense  (which  in  many  cases  occurred  many  years  before) 
but  total  familiarity  with  the  individual  prison's 
programs,  disciplinary  policies  and  housing  arrangements 
and  total  familiarity  with  the  inmate's  daily  activities, 
in  work,  recreation  and  optional  programs  such  as 
athletics,  education  and  vocational  training. 


248 


II.   FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST  (PUBLIC) 

List  sources,  amounts"  and  dates  of  all  anticipated 
receipts  from  deferred  income  arrangements,  stock,  options 
uncompleted  contracts  and  other  future  benefits  which  you 
expect  to  derive  from  previous  business  relationships, 
professional  services,  firm  memberships,  former  employers, 
clients,  or  customers.  Please  describe  the  arrangements 
you  have  made  to  be  compensated  in  the  future  for  any 
financial  or  business  interest. 

I  have  an  Individual  Retirement  Account  (IRA)  which  I 
contributed  to  over  a  period  of  several  years.  The  current 
balance  is  approximately  $23,100.  I  also  have  a  more 
recent  Retirement  Plan  Account  which  I  have  contributed  to 
over  more  recent  years.  The  current  worth  of  that  is 
approximately  $42,200.00.  Those  are  intended  to  provide 
income  beginning  after  the  age  of  sixty. 

Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in 
determining  these  areas  of  concern.  Identify  the 
categories  of  litigation  and  financial  arrangements  that 
are  likely  to  present  potential  conf licts-of-interests 
during  your  initial  service  in  the  position  to  which  you 
have  been  nominated. 

I  would  fully  disclose  to  all  parties  in  the  case  of  any 
facts  that  might  constitute  a  conflict.  I  would  refer  the 
conflict  issue  to  another  judge  if  it  cannot  be  resolved 
with  parties.  The  initial  conflicts  of  interest  I  might 
have  would  be  if  I  had  previously  been  the  attorney  for  a 
particular  litigant.  I  don't  anticipate  any  conflicts 
regarding  continuing  financial  arrangments  as  I  will  have 
none. 

Do  you  have  any  plans,  commitments,  or  agreements  to 
pursue  outside  employment,  with  or  without  compensation, 
during  your  service  with  the  court? 

No. 

List  sources  and  amounts  of  all  income  received  during  the 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest  gifts,  rents,  royalties,  patents,  honoraria,  and 
other  items  exceeding  $500.00  or  more  (If  you  prefer  to  do 
so,  copies  of  the  financial  disclosure  report,  reguired  by 
the  Ethics  in  Government  Act  of  1978,  may  be  substituted 
here. ) 

See  Financial  Disclosure  Report. 


249 


Page  2 


Please  complete  the  attached  financial  net  worth  statement 
in  detail  (Add  schedules  as  called  for) . 

Financial  Net  Worth  Statement  is  attached  with  schedules. 

Have  you  ever  held  a  position  or  played  a  role  in  a 
political  campaign?  If  so,  please  identify  the 
particulars  of  the  campaign,  including  the  candidates, 
dates -of  the  campaign,  your  title  and  responsibilities. 

I  have  participated  in  a  number  of  political  campaigns  over 
the  past  25  years,  virtually  all  at  the  basic  volunteer 
level  -  canvassing,  phone  banking,  putting  up  signs. 

These  included  candidates  for  governor  (Mississippi  and 
Louisiana),  Louisiana  State  Legislature,  Louisiana  judicial 
seats,  and  local  mayor,  city  council  and  school  board 
races  in  New  Orleans.  I  held  no  position  and  had  no  title. 

The  only  campaign  in  which  I  had  a  title  was  as  Finance 
Chair  in  a  local  race  for  Criminal  District  Court  Judge  on 
behalf  of  a  candidate  who  was  defeated. 


250 


FINANCIAL  DISCLOSURE  REPORT 


Report  Raqolrvd   by  tiie  ItJilca 
nmtorm  Act  of    1989,    Pub.    L.   Mo. 
101-194,      Rovaabu   30,    1989 
(5    O.S.C.A.    App.    6.    StlOl-112) 


1.    FotvoD  (teportlng    (Last   nana,    first,    alddle   Initial) 


2.    Coort  or   Organlxatioa   _ 

UoiVd  S+c^^s  I>>st^'cV  Cout-V 


3.    Data  of  Report 

Nov.  \'^, 


4.  Title   (Axticlv  III  judges  Indicate  active  or 

•an lor  status;  Magistrate  judges  Indicate 
full-  or  psrt-tina) 


^.  Report  Type  (chock  approprlata  type) 
_l^  Nonlnatlon.  Date  MOM.  VS  .  V*^*^^ 
Final 


f   Initial 


Annnal 


6.  Raportlng  Parlod 

-^3    preserrA 


7.    Chaal>ata   or  office  Addraaa 

Hoc   ^oit<^ra.i    SWet-V 

Ne.vj:>  Cirlto-'^'Sj  Le>o"ib'>.«».n€^.  -loifcB-A'So 


e.  On  the  baala  of  tha  Inforaatlon  contaload  In  tbla  Report,  it 
la.  In  ay  opinion,  in  coapllanca  wltb  applicable  laifa  aod 
requlatlona  


Reviewing  Officer  slgnatore 


IMPORTANT  NOTES:     The  instructions    accontpartying    this  form   must  be  followed.    Complete  all  parts, 
checking  the  NONE  box  for  each  section  where  you  liave  no  reportable  Inrormation.    Sign   on  last  page. 


POSITIONS.     (Reporting  individual  only,  see  pp.  7-8  of  Instructions.) 

POSITION  NAME  OF  ORGANIZATION/ENTITY 


I    NONE   (Ho  reportable  positions) 

af    Coonse\ 


I.     AGREEMENTS.     (Reporting  individual  only;  see  p.  8-9  of  Instructions.) 
DATE  PARTIES  AND  TERMS 


Berriotxn    Daj>;r,\«y.y.    Li^KCicU   Olsein|Schot.e:t<w< 

^grrigtxn     Ll^xi^flOti,    Sc-ViongUro.S     HourMn  <»■  Clgin»i«»A- 

LQui^iQ.n<x.  RjataOQ-W^  ^C-    r.rinMnQ,i  E>e.-CcnSf   LQ.U)vje.rS 


Ccov,Vi»,«td  .x+IdU.) 


X 


NONE        (Ro   reportable  agreeoents) 


II.     NON-INVESTMENT  INCOME.     (Reporting  individual  and  spouse;  see  pp.  9-12  of  Instructions.) 

DATE  SOURCE  AND  TYPE  GROSS  INCOME 

(Honoraria  only)  (yours,  not  spouse's) 


D 


NONE   (Ho  reportable  non-lnveetment  Incoee) 


Cr<xxelj  Broujg  gjvf^  E)e-rriQQ.r>    CigCja.\  ■vees\ $   (Q/.  3<X>  . 


^Ber^^^go■o^Do■nle■l«.or^,UVc^Ae.^i    (M«a->.   Sct^Qx-Vrtu  *  VAann     $  (S^  a.^onr»e.j 
?ii»rviiyt.r«    V-i-tcWifielA^  Sc-Vior>e.Vtv^j  Hann  »  Cltwen'V $   fe.'S  o.Horneju 

S 


251 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


NaB«  of  Person  Reporting 

Helen   G.  B- 


em  gc 


Date  of   Iteport 

MOV..  \«1,  \«\qi 


V.    REIMBURSEMENTS  and  GIFTS  -  transportation,  lodging,  food,  entertainment. 

(Indades  those  to  spouse  and  dependent  children;  use  the  parenthetlcals  "(S)'  and  '(Dp*  to  Indicate  rrportaMe 
relmbureements  and  gifls  received  by  spouse  and  dependent  children,  respectively.    See  pp.13-15  of  Inatmctioiu.) 


z\ 


SOURCE  DESCRIPTION 

NONE       (No  auch   reportable   ralmburaeMnta   or   gifts) 


EXEMPT 


'.     OTHER  GIFTS,      (includes  those  to  spouse  and  dependent  children;  use  the  parenthedcab  '(S)'  aod  "(DC)"  to 
Indicate  other  gills  received  by  spouse  and  dependent  children,  respectively.  See  pp.l5-li  of  InMrncUont.) 


H 


SOURCE 

NONE       (No   auch   reportable  qlfta) 


DESCRIPTION 


VALUE 


EXEKPT 


DESCRIPTION 


I.  LIABILITIES.  (Includes  those  of  spouse  and  dependent  children;  indicate  where  applicable,  person 
for  llaMilty  by  using  the  parenthetical  '(S)'  for  separate  liability  of  spouse,  '(])'  For  Joint  liability  of 
individual  and  spouse,  and  '(DC)'  for  liability  of  a  dependent  child.    See  pp.lfr-lS  oflnstructlons.) 

3 


CREDITOR     . 
NONE       (He  raportabla   llabllltlea) 


responsible 
reporting 


VALUE   CODE* 


^OQ.^lor^Q■^  Hor^ggqe  G^rporo. hoofs'^      rea.1    e.&->To.A€ >»or-^9n.9e 

Qr..>,-.ra.»   Reii.tf^ViQ.1     Hor>-ga-gg^S')  re£x.\     et-t-a.t^ y>.  .-^  r-t-ga.<^<e 


K 
_tSL 


H. 


VXUn  CODUI       }  •  (is, 000  or  l*ae  K  -  JlJ.OOl  to  SSO.OOO  L  -  SSO.OOl  to  $100,000         M  •  ll««,001  t6  t2M<bM 

a  >   SlSO.OOl   to  SSOO.OOO        O  -  $500,001   to  $1,000,000        7  ■  Hor*  Uun  $1,000,000 


252 


I 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


RUB*  of  Person  Roportlng 


Data  of  Report 
Mom.  V«\,  \'^'^2> 


yil.    INVESTMENTS  and  TRUSTS  -  income,  value,  transactions,    (indades  those  of  spoii«e 

and  dependent  children;  see  pp.  18-27  of  lnslructk>n.s.) 


(InelMitis  trust  aaseta) 

tttiiemft  «rh*r«  •peiie«bl«,   ovnftr  of 
tS«  «s«*t  BY  uaififf.U*  pdr«nth«U.csl 

C. 

Orooa  valiM 
•  t  «nd  oC 

D. 
Traauotloiu  4nrln«  t«portla«  period 

loo  IttdiviaDJil  And  apog8«,    '(Sl^   for 
••ft«£at«  ownaraUp  by  apousay    ^(DC)" 
tor  ovnanhlp  By  aap^ndant  child. 

I^lao*  *(X1*  «(t«£  each  «««<1 
•XMtpt  trto  prior  dlacloaur*. 

(11 

(il 
,Typ« 

'Si?:: 

ti) 
(j-p) 

(J) 
MtboS, 

If  not  •¥— yt  troB  dl«clo«ar«               | 

hlL, 

Heath- 
Mr 

(1) 

'548' 
(j-f) 

(4) 

(CSi 

Jdjoiltj  et 

NONE      (Ho   reportablA 
locoaa,    aaaata,    or 
tranaart.lnnal 

e 

/ 

ET 

r\ 

P  T 

^  noi  LotJell  s*-.  o«.+  8a. 

&o.t«r>  RouOf .   La..r«n+<».l  Cori<ie 

D 

r  en^ 

\< 

VJ 

*    Ca.%1a.Ae    IJCLWra.1  G-evS 

A 

d.v.jend 

3 

T 

3 

Cl4->Corp',     CoTvirnori 

A 

A'vier^i 

J 

T 

4 

<iw>Aenel 

l< 

T 

s 
Tr-,'- ConVinCn^l    Corpora. Ke<»i 

C 

Ji.>'.<^e'<) 

K 

T 

6 

C 

dlOficrc 

D 

T 

T.  Rowe  Price 

B 

d.M.U^ 

\< 

T 

9 

MCW    Co  r  pora.  V\ort ',     OJrn  h<\on 

A- 

cJiMiJtrx 

-3 

T 

"    Trees- Hctew  &■•  RoteerVs 
<J(W   Jerr^j  McCorti  Roi)C.r+£ 

D 

Jwi'JcnJ 

M 

T 

t4e»e"  &    Robtr-Vs  Re+x-er^tftV 
P'.  an%  ■ 

KJtvO  Or^eo-ns.  La.. 

B 

>n+e>«iy 

V< 

1 

'*  (plDrc'jfus  Ra~>l^  "f  Funis 

3 

Jw.ie.) 

X 

1 

6a.r.k-,  Nev«J  Orleans. U». 

B 

l«+tl«it 

V< 

T 

"V.«'Wer+>(    Pioanoat    SCroiceS 
Pi-tfe<reel      (5^ 

ft 

none 

\< 

T 

"l-lber+^  F.n"<vnO«.l   Ser^-lCCI 
Coorimen    C  S'i 

/V 

none 

K 

T 

Mi;y;»Orle.a.nS    lA  .    4-  Plot 

e 

rtnV 

n 

a 

- 

D 

ren+- 

L 

VvJ 

We«>  firleon'S.VA.       M-Plex.  fs^ 

D 

rco  + 

L 

VJ 

V^OlO  C>rleo.ii%.  La.       '^-  PV«* 

D 

reo+ 

L 

>A) 

Vitus  OrVeaj.S.  U».    t    a.pVs    CS] 

t 

rcn-*- 

L 

W 

1   Inc3csM/0*ln  Ca«Mi        Ik-(1,000  or   !•■•                    I'^l.OOl  to  Sl.JOO                    C<S2.S01  to  S.OOO                      I>>i>,001  to  $13,000 
(MM  Col.  ki  t  D«l      E-jii,oot  to  ssa.ooo         F-iSB.ooi  to  iioo.oeo           o-sioo.ooi  to  ii, 000,000      etton  oim  tliQJf'JJf     ■ 

TTOMSii.1                J-}lj;iJ66  or  ImI               (i.|l!,»6i  toh«.*«4     "      l.ha.ial  to  JlM.Mi           h-JlM.Ml  lo  IJSi.JM 

IStm  col.    CI   (   D>l         H-SISO.OOI    to   SSOO.OOO        O-tSOO.OOl    to  SI. 00"   »««        r-marm   tlx>   ll.OOO.OOO 

(M*  Cal.  at                 U—Bok  V.loa 

k-Coot 

It;.!  1 

•tato  onl) 

1     |t-Xaa»a«»qk 

5St 

ukytUttiat                        1 

FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


253 


Name  of  Pecson  Reporting 


Dat*  of  Raport 

Mom.  W,l'HS3 


VIII.    ADDITIONAL  INFORMATION  or  EXPLANATIONS,    (imiicaie  part  of  Report.) 

BoQ.rE>  o-(-  t>irfo4-DY-1^^  PresiA&r.V Covr>ry.rWee     <Jr     ^\ . 

Prg'SiA.'nt;  Vice- Pre.Si<^en-V lP>YnfrigQ.rn    Cv  m  >    Li.i,er^g  ■S    O  moo   a-f     L  ft  U  i  s.  nJ-WC^ 

ftfstit-iA  o-P   D't'ec-Vor-S 'Rmer\fQi-i    C>0' \  Li  ber-Vne-s    Uhiov^ 

^fr^Vipr,  SVfi»ring  Co m m lUee ^  C\ncnr- ForuTvi     ^or    '^'^<3.\\\<^ 

■j>,^an^A  r.1^  DireiL-VDY-_& PVrv^,s+r.A    Reseo-«-cVi  Ce^rVe.r- . 

Pr,n.r-A  e-P   V^iY-cr  ■Ut-.'^ J  Ufc-^-    fc^   "Hie     ^ecoi-cj 


R^n.r-A    o-f-   D>yecAoc3 Sooe-4-M^  of    Qroencmn  ■»,    Im-  RcQovpnj  CSopO.  j 


IX.    CERTIFICATION. 

In  compliance  with  the  provisions  of  28  U.S.C.  §  455  and  of  Advisory  Opinion  No.  57  of  the  Advisory  Committee  on 
Judicial  Activities,  and  to  the  best  of  my  knowledge  M  the  time  after  reasonable  inquiry,  I  did  not  perform  any  adjudicatory 
function  in  any  litigation  during  the  period  covered  by  this  report  in  which  I,  my  spouse,  or  my  minor  or  dependent  children 
lad  a  financial  interest,  as  defined  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigation. 

I  certify  that  all  information  given  above  (including  information  pertaining  to  my  spouse  and  minor  or  dependent  children, 
f  any)  is  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  belief,  and  that  any  information  not  reported  was 
withheld  because  it  met  applicable  statutory  provisions  permitting  non-disclosure. 

I  further  certify  that  earned  income  from  outside  employment  and  honoraria  and  the  acceptance  of  gifts  which  have  been 
reported  are  in  compliance  with  the  provisions  of  5  U.S.C.A  app.  7,  §  501  et.  seq.,  5  U.S.C  §  7353  and  Judidal  Conference 
regulations. 

Si^ature      l^\caU^  (^ .   ^\.<LW--^^^^^^ Date     M^^'^.^-^S 

NOTE:      ANY  INDIVIDUAL  WHO  KNOWINGLY  AND  WILFULLY  FALSIRES  OR  FAILS  TO  FILE  THIS  REPORT 
MAY  BE  SUBJECT  TO  CIVIL  AND  CRIMINAL  SANCTIONS  (5  U.S.C.A  APP.  6,  §  104,  AND  18  U.S.C  S  1001.) 


FILING  INSTRUCTIONS: 

Mail  signed  original  and  3  additional  copies  to:  Judicial  Ethics  Committee 

Administrative  OfBce  of  the 

United  States  Courts 
Washington,  DC   20544 


254 


NET  WORTH 


PidYidt  I  coffiplele.  cuf  rrni  finincial  nti  worth  jUtement  which  ilemizej  in  detail  ill  iJjelJ  (indue 

r'i   rca!  *it*t»-  «»«'Jf''''^-  '"J>i».  invtiimtnli.  »ft<j  o(her  (in»ncijl  hold(ngi)  all  liabilities  (includi' 

*     ^^p^j   ;ajni.  and  olbe'-  financial  obligalionj)  o(  yourjeH,  your  spouse,  and  oiher  ImmedlaU  mei 


A^SCTS 


CUti  0-1  I*"*  «nS  '"  ft*"** 

U.S.  C9««<nf  •"'  jsc\jnort— •<J'S 

Unlin»<  i*:urttl»*— -«(Jd  »£*'»dul»C8) 
Aeccu.io  eri  notrt  fttBVibie: 

Dui  fTOrtl  (ti»fiv*i  tnd  ln»ndl 

Doubtful 
R«ii  »n«t«  o»^id     tat  ►cKtrfi'ifCc) 
R<(|  «Ul«  moitj»|»«  f»C»i»«6le 
Autoi  «n<»  <"''•'  ?«'*o'<«l  property 
C*tK  v«l««— '•'•  InturinCB 
0^^«'■  «»»*u— ««mlt«:  C  I>) 


2o  ooe 


i    -o- 


l|  I07O03 


gg<??5 


—  o  — 


-0  ~ 


TerUI  •IMM 


1 


ajNTINCCNT  UXaiLITItS 

Ax  •<^4orv•r,  csf^attr  or  (uinnior 
On  iMui  er  cDivtcn 

r^rm.tion  (or  r>Oar(l  {near*  r«( 
Ott\(r  t»«<UI  dcet 


^47  OOP 


-  O  — 


3!ooo 


AtZOO 


aiid^ 


li9iJ>3t 


-o- 


-o— 


6- 


"O" 


oo 


tfO 


1 


oo 


oo 


UABlimES 


Noiat  paytbit  to  UnM     »»cur»d 
Ns(*t  »«y(bU  lo  h»<ilo»— OM^eurwl 
Notn  payaW*  ts  r«Ut/««* 
Notn  par*fat«  to  erthtr* 
Acoournx  artd  MMt  ou* 
Unpaid  Irtconw  Ui 
OUvir  unpaid  Ui  ind  lnncv«« 
K«tl  *ittt*  moctKifn  p*v*P<»~«dd 
»cA»<Juta  iaj 

par<bi« 
mtitf  dtM* — lli/nlit: 


—  o  - 


-o  — 


-o  — 


ToUi  lUbllitlM 

Natwortn 

Tout  fl»blllU»i  «nd  ^«^  worth 


CCNUUL  INrORMATIOK 


A/*   any   4*A«t*  pl«3|adl    (AOd   Kh^ 
Ul*.> 

An  you  difartdirrt  In  any  Mts  or 

Usai  acoontt' 
Ht««  }OU  avw  tikan  banvupiey? 


!- 


Nd 


*6 


OO 


NO 


JJO 


255 


Financial  Net  Worth  Statement  /  Schedules; 

Listed  Securites  -  Schedule  (A) ; 

IBM  -  393  Shares 

Cascade  Natural  Gas  -  3  53  Shares 

Citicorp  -  320  Shares 

Salomon  Bros.  Fund  Inc.  -  1081  Shares 

T.  Rowe  Price  Growth  Stock  Fund-1063  Shares 

Tri-Continental  Corp.  -  1210  Shares 

Unlisted  Securities  -  Schedule  (B)  : 

Liberty  Financial  Services,  Inc. 

New  Orleans,  Louisiana,  10%  Cumulative 

Preferred  Stock 

Liberty  Financial  Services,  Common  Stock 
Real  Estate  Owned  -  Schedule  fC)  ; 


Description 

4  319  Hamilton  Street 

New  Orleans,  La.  (4-Plex) 

6515-17  Center  Street 
New  Orleans,  La.  (double) 

Unit  82,  Bocage  Condo 
Baton  Rouge,  La. 


Market  Value 
$  240,000.00 

$  120.00.00 

$   57,000.00 

$   50,000.00 


2213-15  Gen.  Taylor  St. 
New  Orleans,  La.  (4-Plex) 

National  Mortgage  Corp. 

Colorado  Blvd. ,  Denver, 


$ 

19,551. 

,75 

$ 

9,354. 

,50 

$ 

11,120, 

.00 

$ 

15,134. 

.00 

$ 

21,598, 

.31 

$ 

30.250. 

.00 

$107,003.56 


$  38,825.30 


S  19.260.00 
$  58,085.30 


Mortgage 

-  0  - 

-  0  - 

$  24,000.00 

$  41,569.00 

,  1355  South 
Colo.  80233 


$   80,000.00 


$  85,241.00 


1708-10  N.  Broad  Street 
New  Orleans,  La.  (4-Plex) 

American  Residential  Mortgage  Corp. 

P.O.  Box  85804,  San  Diego,  Ca.  92186-5804 


1632  Esplanade  Ave.  $  120,000.00        $132,213.00 

New  Orleans,  La.  (8  Apartments) 

Equitable  Real  Estate,  5775  E.  Peachtree 
Dunworay  Road,  Suite  400,  Atlanta,  Ga.  303 


Total: 


$  677,000.00 


$283,023.00 


256 

Financial  Net  Worth  Statement  /  Schedules: 

Other  Assets  -  Schedule  (D) : 

(1)  TTEES  -  Helen  G.  Roberts  u/w 
Jerry  McCord  Roberts  Art.  6th 
as  amended  (trust  established 

.by  deceased  mother)  $120,414.00 

(2)  Helen  G.  Roberts  Retirement  Plan  Account: 

Liberty  Bank  &  Trust  Co. , 

New  Orleans,  La.  $  24,519.00 

Dreyfus  Family  of  Funds  $  18,914.00 

IRA  Hibernia  National  Bank 
New  Orleans,  La. 

$  23,103.00 

(3)  Joseph  E.  Berrigan,  Jr.  (husband) 

Profit  Sharing  Plan  -  Prudential 
Securities,  $230. OOP. 00 

$416,950.00 


257 


III.   GENERAL  (PUBLIC) 

1.  An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged".  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances 
and  the  amount  of  time  devoted  to  each. 

During  my  first  years  of  practicing  law,  I  was  based  in 
Alexandria,  Louisiana.  The  system  there  for  providing 
counsel  to  indigents  was  to  appoint  attorneys  from  the 
local  bar  on  a  rotating  basis.  While  we  were  authorized 
to  submit  a  bill  for  reimbursement  on  our  services,  I 
never  did  and  instead  did  the  work  for  free.  I  estimate  I 
was  involved  in  about  100  cases  on  that  basis,  both 
criminal  and  civil. 

Since  moving  to  New  Orleans  in  1984,  I  have  continued  to 
provide  pro  bono  or  near  pro  bono  services  to  many  people 
on  a  regular  basis.  I  estimate  that  30-40%  of  my  legal 
practice  and  time  has  been  in  the  type  of  work.  These 
encompass  all  ranges  of  primarily  criminal  representation 
including  a  number  of  death  penalty  cases  at  the  trial  and 
appellate  levels.  I  was  also  on  contract  to  handle 
criminal  appeals  for  indigents  in  the  neighboring  Jefferson 
Parish  from  1990  until  June  1993.  Although  my  contract 
ended  in  June,  I  have  continued  to  represent  about  a  dozen 
of  the  individuals  on  a  pro  bono  basis  as  well. 

In  connection  with  my  community  work,  I  have  participated 
in  various  fundraising  efforts  and  speaking  programs  to 
assist  the  disadvantaged,  primarily  the  poor  and  various 
minority  groups.  For  example,  a  couple  of  years  ago  I  was 
YWCA  Role  Model  and  in  that  capacity  spoke  to  young  women 
in  our  urban  public  schools.  As  another  example,  last  year 
I  co-chaired  a  major  fundraiser  on  behalf  of  Lazarus  House, 
a  residential  facility  affiliated  with  the  New  Orleans 
Catholic  Archdiocese  which  houses  AIDS  victims  who  are  no 
longer  able  to  live  independently.  I  have  also  participated 
in  prison  programs  and  workshops  to  hopefully  assist 
inmates  in  rehabilitating  themselves. 

2.  The  American  Bar  Association's  Commentary  to  its  Code  of 
Judicial  Conduct  states  that  it  is  inappropriate  for  a 
judge  to  hold  membership  in  any  organization  that 
invidiously  discriminates  on  the  basis  of  race,  sex,  or 
religion.  Do  you  currently  belong  or  have  belonged  to  any 
organization  which  discriminates,  through  either  formal 
membership  requirements  or  the  practical  implementation  of 
membership  policies? 

No. 


258 


Page  2 


3.  Is  there  a  selection  commission  in  your  jurisdiction  to 
recommend  candidates  for  nomination  to  the  federal  courts? 
If  so,  did  it  recommend  your  nomination? 

I  know  of  no  Selection  Commission  in  my  jurisdiction  which 
recommends  candidates. 

Please  describe  your  experience  in  the  entire  judicial 
selection  process,  from  beginning  to  end  (including  the 
circumstances  which  led  to  your  nomination  and  interviews 
in  which  you  participated) . 

After  the  election  of  President  Clinton,  my  two  senior  law 
partners  recommended  me  for  a  federal  judgeship  to 
Senators  Breaux  and  Johnston. 

I  also  obtained  recommendations  from  members  of  th6  legal 
community,  political  organizations,  labor  and  business 
leaders  and  minority  representatives. 

Subsequent  to  being  recommended  by  the  two  senators,  I 
filled  out  various  forms  and  was  interviewed  by  officials 
in  the  Justice  Department,  the  F.B.I,  and  the  American  Bar 
Association. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a 
judicial  nominee  discussed  with  you  any  specific  case, 
legal  issue  or  question  in  a  manner  that  could  reasonably 
be  interpreted  as  asking  how  you  would  rule  on  such  case, 
issue,  or  questions.  If  so,  please  explain  fully. 

No. 

5.  Please  discuss  your  views  on  the  following  criticism 
involving  "judicial  activism." 

Under  our  system  of  separation  of  powers,  the  legislature 
has  the  responsibility  of  promulgating  the  general  laws  and 
policies  affecting  society  as  a  whole.  The  judiciary  is  a 
separate  branch  of  government  with  an  entirely  different 
responsibility.  The  courts  are  mandated  to  resolve 
particular  conflicts  between  individual  parties  who  have  a 
specific  genuine  dispute.  The  parties  should  clearly  be 
entitled  to  a  legal  resolution  of  their  problem  -at  that 
time  or  else  the  court  should  decline  the  case.  The 
courts  are  to  apply  the  constitution  and  the  general  law  to 
that  specific  dispute  emd  decide  which  party  is  entitled 
to  prevail.  The  decision  amd  remedy  should  be  limited  to 
those  particular  parties.  The  reasoning  behind  the  decision 
should  likewise  be  narrowly  confined  to  the  type  of 
conflict  set  forth  in  the  case. 


5. 


259 


Page  3 


The  courts  do  have  a  unique  responsibility  of  determining 
the  constitutionality  of  statutes  and  laws,  as  promulgated 
and  as  applied.  However  even  in  those  situations,  the 
court's  role  should  generally  be  confined  to  that  basic 
decision,  leaving  the  legislature  and  executive  branch  to 
respond  with  whatever  affirmative  steps  need  be  taken  to 
restore  constitionality. 


260 


AFFIDAVIT 


lation  provido^  in  this  statement  is,  to  1 


I.   ^^^^  f  V-^'-^^^^^fy— ,  do  swear  that  the 

information  providod  in  this  statement  is,  to  the  best  of  my 
knowledge,  true  and  accurate. 


(Date)  (NJme) 


^v^Vl. 


(Notary) 
ARTHUR  S.  MANN.  Ill 

Public.  Parish  of  Orlaaru.   SM*  of  U. 
■  hMd  tar  VU. 


261 


I.   BIOGRAPHICAL  INFORMATION  (PUBLIC) 

1.  Full  name  (include  any  former  names  used.) 
Tucker  Lee  Melancon 

2.  Address:  List  current  place  of  residence  and  office  address (es). 

Residence   604  North  Monroe  Street 

Marksville,  Louisiana  71351 

Office     P.  0.  Box  211 

Marksville,  Louisiana  71351 

3.  Date  and  place  of  birth. 

February  3,  1946 
Bryan,  Texas 

4.  Marital  status  (include  maiden  name  of  wife,  or  husband's  name). 
List  spouse's  occupation,  oiployer's  name  and  business  address (es). 

Katherine  Ascher  Melancon. 
Hcroemaker. 

5.  Education:  List  each  college  and  law  school  you  have  attended, 
including  dates  of  attendance,  degrees  received,  and  dates  degrees 
were  granted. 

Louisiana  State  University,  Baton  Rouge,  Louisiana, 

1964-1968,  Bachelor  of  Science,  May  25,  1968 
Tulane  University  School  of  Law,  New  Orleans,  Louisiana, 

1970-1973,  Juris  Doctor,  May  11,  1973 

Summer  schools  attended: 

Louisiana  State  University  at  Alexandria,  Alexandria, 

Louisiana,  1965  and  1966 
Loyola  University,  New  Orleans,  Louisiana,  1969 
Louisiana  State  University  School  of  Law,  Baton  Rouge, 

Louisiana,  1971 

I  also  attended  Loyola  University  School  of  Law,  Night  Division, 
New  Orleans,  Louisiana,  for  a  brief  period  in  the  fall  of  1968.  I 
resigned  due  to  the  demands  of  my  teaching  profession. 

6.  Employment  Record:  List  (by  year)  all  business  or  professional 
corporations,  coir^^nies,  firms,  or  other  enterprises,  partnerships, 
institutions  and  organizations,  nonprofit  or  otherwise,  including 
firms,  with  which  you  were  connected  as  an  officer,  director, 
partner,  proprietor,  or  atployee  since  graduation  from  college. 


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262 


1968-1969    Science/Physical  EducatiOTi  Teacher 
Jefferson  Parish  School  Board 
Gretna,  Louisisuna 

1973-1975    Associate 

Knoll  &  Knoll 
Attorneys  at  Law 
Marksville,  Louisiana 

1975-1983    Member,  Board  of  Directors,  Secretary-Treasurer, 
Avoyelles  Holdirg  Company,  Inc.,  dA>/a, 

Brieirwaod  Motel 
Bunkie,  Louisiana 

1975-1983    Solo  law  practice 

Marksville,  Louisiana 

1976-1987    Manber,  Beard  of  Directors,  Secretary-Treasurer 

Mar -Dan  Enterprises,  Ltd.,  d/b/a,  Melancon  Funeral 

Home  cind  Melancon  Mcnument  Cotpany 
Bunkie,  Loiiisiana 

1976-1979    Manber,  Board  of  Directors 

W.  Belmont  Townsend  Memorial  Foundation, 

Inc.  (ncHi  profit  corporation),  d/b/a, 

Epps  House 
Bunkie,  Louisicina 

1978-1980    Member,  Board  of  Directors,  Secretary-Treasurer, 
E-Z  Shop  of  Alexandria,  Inc.,  d/b/a  E-Z 

Shop 
Marksville,  Louisiana 

1980-1981    Manber,  Board  of  Directors,  Secretary-Treasurer, 
Son  of  Son,  Inc.,  d/b/a,  Mike  Anderson's  Seafood 

Restaurant 
Mcinsura,  Louisieina 

1984-present  Managing  Partner 

Melcincon  &  Rabalais 
Attorneys  at  law 
Marksville,  Louisiana 

1985-1987    Member,  Board  of  Directors,  Secretary-Treasurer, 
Laco  Premium  Plan,  Inc.,  d/b/a,  Laoo, 
Mcurksville,  Louisiana 

1987-1988    Manber,  Board  of  Directors,  Secretary-Treasurer, 
Southeast  CentreLl  Louis  icuia  Premium  Fincince 

Cotipany,  d/b/a,  SBCLA 
Marksville,  Louisicina 


-2- 


263 


1989-1992    Matter,  Advisory  Beard 

Catalyst  Old  River  Hydroelectric  Partnership 
Vidalia,  Louisiana 

1992-present  Mannber,  Board  of  Directors 

Catalyst  VidaLLia  Corporation 
New  York,  New  York 

7.  Military  Service;  Have  you  had  aiiy  military  service?  If  so, 
give  partiCTilars ,  including  the  dates,  branch  of  service,  rank 
or  rate,  serial  number  and  type  of  disdiarge  received. 

No. 

8.  Honors  and  Awards;  List  any  sdioiarships ,  fellowships,  honorary 
degrees,  and  honorary  society  menfaerships  that  you  believe  would 
be  of  interest  to  the  Ccnmittee- 

Not  applicable. 

9.  Bar  Associations;  List  all  bar  associations,  legal  or  judicial- 
related  catmiittees  or  conferences  of  vAiich  you  are  or  have  been  a 
member  and  give  the  titles  and  dates  of  any  offices  which  you 
have  held  in  such  groups. 

Avoyelles  Parish  Bar  AssociaticKi,  President,  1977-1978 
Louisiana  State  Bar  Association,  House  of  Delegates, 

1973-1975,  1990-present 
Bar  Association  of  the  Fifth  Federal  Circuit 
Louisicuia  Trial  Lawyers  Associaticsi,  President's 

Advisory  Board,  1979-1980,  1985-1986,  1987-1988, 

1990-present 
American  Trial  Lawyers  Association 
American  Inns  of  Court,  Alexandria-Pineville  Chapter 
American  Judicature  Society 

Louisiana  Workers'  Conpensatioi  Advisory  Board,  1990-1991 
Ccranittee  to  Study  Backlog  in  the  Ocurts  of  Appeal, 

First  and  Third  Circuits,  by  aK»intniait  of  the  Louisiana 

Supreme  Court,  1991 

10.  Other  memberships;  List  eLll  organizaticms  to  \i^idi  you  belong 
that  are  active  in  lobbying  before  public  bodies.  Please  list  all 
other  organizations  to  vrtiich  you  belong. 

Louisiana  Trial  Lawyers  Association 
Aroericcin  Trial  Lawyers  Association 
The  Environmental  Defense  Fund 

The  National  Eagle  Scouts  Association 

The  New  Orleans  Track  Club( running  club,  no  facilities,  race  sponsor) 

Louisiana  Public  Broadcasting 


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264 


11.  Court  admissions;  List  all  cxiurts  in  which  you  have  been  admitted 
to  practice,  with  dates  of  admission  and  lapses  if  any  such 
memberships  lapsed.  Please  explain  the  reason  for  any  lapse  of 
membership.  Give  the  same  infornation  for  administrative  bodies 
which  require  special  admission  to  practice. 

Louisiana  State  Bar,  October  5,  1973 

United  States  District  Court,  Eastern  District  of  Louisiana, 

Novenber  13,  1974 
United  States  Court  of  Appeals,  Fifth  Circuit, 

July  26,  1979 
United  States  District  Court,  Middle  District  of  Louisiana, 

October  8,  1980 
United  States  District  Court,  Western  District  of 

Louisiana,  September  16,  1985 
United  States  Supreme  Court,  November  4,  1985 
United  States  District  Court,  District  of 

Nevada  on  a  single  case  basis,  petition  filed 

February  4,  1992 

12.  Published  Writings;  List  the  titles,  publishers,  and  dates  of 
books,  articles,  reports,  or  other  published  material  you  have 
written  or  edited.  Please  supply  one  copy  of  all  published 
material  not  readily  available  to  the  Ccnndttee.  Also,  please 
supply  a  copy  of  all  speeches  by  you  on  issues  involving 
constitutional  law  or  legal  policy.  If  there  were  press  reports 
about  the  speech,  and  they  are  readily  available  to  you,  please 
supply  them. 

None. 

13.  Health:  What  is  the  present  state  of  your  health?  List  the  date 
of  your  last  physical  examination. 

Excellent.  My  last  physical  examination  was  on  May  12,  1992 

14.  Judicial  Office:  State  (chronologically)  any  judicial  offices  you 
have  held,  whether  such  position  was  elected  or  appointed,  and  a 
description  of  the  jurisdiction  of  each  such  court. 

None. 

15.  Citations;  If  you  aure  or  have  been  a  judge,  provide;  (1)  citations 
for  the  ten  most  significant  opinions  you  have  written;  (2)  a  short 
sunmary  of  and  citations  for  all  appellate  opinions  v^iere  your 
decisions  were  reversed  or  where  your  judgment  was  affirmed  with 
significant  criticism  of  your  substantive  or  procedural  rulings; 
and  (3)  citations  for  significant  opinions  on  federal  or  state 
constitutional  issues,  together  with  the  citation  to  appellate 
court  rulings  on  such  opinions.  If  any  of  the  opinions  listed 
were  not  officially  reported,  please  provide  copies  of  the 
opinions . 

Not  applicable. 


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265 


16.  Public  Office:  State  (chrcxxslogically)  amy  public  offices  you 
have  held,  other  than  judicial  offices,  including  the  terms  of 
service  and  whether  sadti  positions  ware  elected  or  appointed. 
State  (chronologicailly)  euiy  unsuccessful  candidacies  for 
elective  public  offioe. 

I  vras  appointed  by  the  Bunkie,  Louisiana,  City  Council  to  serve  on 
the  BunJcie  Airport  Authority  from  1974  to  1978. 

I  was  appointed  by  the  Assistant  Secretary  of  Labor  of  the  State  of 
Louisiana  to  serve  on  the  Louisiana  Workers'  Condensation  Advisory 
Board  from  1990  to  1991. 

17 .  Legeil  Career; 

a.  Describe  chronologically  your  law  practice  and  e^qierience 
aft-^T  graduaticMi  from  law  school  including: 

1.  whether  you  served  eis  clerk  to  a  judge,  euid  if  so, 
the  name  of  the  ju^,  the  court,  and  the  dates 
of  the  period  you  were  a  clerk; 

Not  applicable. 

2.  whether  you  practiced  alone,  and  if  so,  the  addresses 
and  dates; 

May  15,  1975  to  August  1980. 

116  East  Mark  Street 
Marksville,  Louisiana  71351 

3.  the  dates,  names  and  addresses  of  law  firms  or  offices, 
companies  or  governmental  agencies  with  vrfiich  you  have 
been  connected,  cind  the  nature  of  your  connection  with 
each; 

August  1,  1973- 

May  14,  1975      Associate 

Knoll  &  Knoll 

Attorneys  at  Law 

P.  0.  Box  426 

Marksville,  Louisiana  71351 

Gaieral  civil  practice,  including  plaintiffs' 
personal  injury  emd  vrorkers'  ccn^jensation 
litigation,  reed,  estate,  domsstic 
relations  ,  successions  (probate),  cind 
oonmercial  practice. 


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266 


May  15,    1975- 
Deceitiber  31,   1983 


Solo  Practitioner 
116  East  Mark  Street 
Marksville,  Louisiana  71351 
(associate  Rodney  M.  Rabalais 
hired  in  1980) 

General  civil  and  criminal  practice, 
including  plaintiffs'  personal  injury 
and  workers'  compensation  litigation, 
felony  and  misdemeanor  criminal  defense, 
(1975-1980),  real  estate,  dcroestic 
relations,  successions  (probate),  and 
CCTimercial  practice- 


January  1,  1984- 
present 


Managing  Partner 
Melancon  &  Rabalais 
Attorneys  at  Law 
Marksville,  Louisiana,  71351 

General  civil  practice,  plaintiff  and  defense 
with  cin  emphasis  on  personal  injury  and 
workers'  compensation  litigation,  and  also 
including  conmercial  litigation,  corporate 
law,  doTvestic  relations,  successions 
(probate),  and  real  estate. 

1,  What  has  been  the  general  character  of  your  law  practice, 
dividing  it  into  periods  with  dates  if  its  character 

has  changed  over  the  years? 

While  I  still  handle  plaintiffs'  personal  injury  cases,  successions 
(probate),  and  a  number  of  corporate  clients,  over  the  last  two 
years  my  practice  has  become  more  defense  oriented.  (Currently 
the  majority  of  my  time  is  devoted  to  defense  work  for  Guarantee 
Mutual  Life  Insurance  Company;  the  Louisiana  Sheriff's 
Risk  Management  Program;  Imperial  Fire  &  Casualty  Insurance 
Company;  the  State  of  Louisiana,  Department  of  Transportation 
&  Development;  and  the  Avoyelles  Parish  Sheriff's  Department. 
My  prior  practice  is  listed  in  my  response  to  question  17(a)(3). 

2.  Describe  your  typical  former  clients,  and  mention  the 
areas,  if  any,  in  which  you  have  specialized. 

The  Avoyelles  Parish  Sheriff's  Department  (The  Law 

Enforcement  District  of  the  Parish  of  Avoyelles, 

State  of  Louisiana),  general  counsel 
Louisiana  Sheriff's  Risk  Management  Program,  liability 

defense 
Guarantee  Mutual  Life  Insurance  Company,  workers' 

compensation  defense 


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267 


Imperial  Fire  &  Casualty  Insurance  Conpany,  liability 
defense 

State  of  Louisiana,  D^artment  of  Transportation 
&  Development  and  D^artment  of  Public 
Safety  and  Corrections,  lieibility  defense 

c.  1.  Did  you  appear  in  court  frequently,  occcisioncilly,  or  not 
at  all?  If  the  frequency  of  your  appearances  in  court 
varied,  describe  eacii  such  variance,  giving  dates. 

I  have  appeared  regularly  in  court.  However,  in  the  leist 
two  to  three  years,  I  have  appeared  somewhat  less 
frequently  because  of  the  changing  nature  of  my 
practice;  the  increasing  amount  of  defense  vrork; 
the  ranoval  of  workers'  condensation  ceises 
from  state  district  courts  to  the 
Office  of  Workers'  Con^pensation 
Administration;  and  the  hiring  of  em  eissociate. 

2.  What  percentage  of  these  a^jecurances  was  in: 

(a)  federal  courts; 
1% 

(b)  state  courts  of  record; 
94% 

(c)  other  courts. 

Louisiana  Office  of  Workers'  Conpensation  Administration, 
workers'  compensation  trials  and  related  natters — 5%. 


3.  What  percentage  of  your  litigation  was: 

(a)  civil; 

99% 

(b)  crimincd. 
1% 

4.  State  the  number  of  cases  in  courts  of  record  you  tried 
to  verdict  or  judgmait  (rather  than  settled),  indicating 
whether  you  were  sole  counsel,  chief  counsel,  or 
associate  counsel. 

300  to  400  cases  as  sole  counsel,  approximately 
20  cases  as  aissociate  counsel. 


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268 


What  percentage  of  these  trials  was: 
(a)   jury; 


(b)  non-jury. 

99% 

18.  Litigation:  Describe  the  ten  most  significant  litigated  matters 
which  you  personally  handled.  Give  the  citations,  if  the  cases 
were  reported,  and  the  docket  number  and  date  if  unreported.  Give 
a  capsule  summary  of  the  substance  of  each  case.   Identify  the  party 
or  parties  whom  you  represented;  describe  in  detail  the  nature  of 
your  participation  in  the  litigation  and  the  final  disposition  of 
the  case.  Also  state  as  to  each  case: 

(a)  the  date  of  representation; 


(b)  the  name  of  the  court  and  the  name  of  the 
judge  or  judges  before  v^cxn  the  case  was 
litigated;  and 


(c)  the  individual  name,  addresses,  and  telephone 
numbers  of  co-counsel  and  of  principal  counsel 
for  each  of  the  other  parties. 

The  cases  I  selected  in  response  to  this  question 

are  significant  only  to  the  parties  I  represented  and 

to  me.  However,  they  are  representative  of  my 

practice  and  of  my  litigation  experience.  A  summary  of  the 

information  requested  for  each  case,  in  reverse  chronological  order, 

is  attached  hereto  as  Appendix  I. 

19.  Legal  Activities:  Describe  the  most  significant  legal  activities 
you  have  pursued,  including  significant  litigation  which  did  not 
progress  to  trial  or  legal  matters  that  did  not  involve  litigation. 
Describe  the  nature  of  your  participation  in  this  question,  please 
omit  any  information  protected  by  the  attorney-client  privilege 
(unless  the  privilege  has  been  waived). 

In  1990  I  was  appointed  to  the  Louisiana  Workers'  Condensation 
Advisory  Board  by  the  Assistant  Secretary  of  Labor.  The  Board 
was  set  up  pursuant  to  Louisiana  Revised  Statute  23:1291B. (14) 
and  consisted  of  five  members.  The  Board's  role  was  to 
assist  the  Director  of  the  Office  of  Workers'  Compensation 
Administration  in  the  development  and  implementation  of 
policies  and  procedures  for  the  Workers'  Compensation 
Administrative  Hearing  Process  that  was  removed  from  the 
state  district  courts  in  1990. 


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269 


A  sunmary  of  four  cases  I  handled  that  were 
settled  after  litigation  was  instituted,  but  prior  to 
trial,  in  chronologiccil  order,  is  attached  hereto  as 
Appendix  II. 


II.   FINANCIAL  DATA  AND  CDNFLICr  OF  INTEREST  (PUBLIC) 

List  all  sources,  amounts  cind  dates  of  all  anticipated  receipts  from 
deferred  income  arrangements,  stock,  options,  uncompleted  contracts 
and  other  future  baief its  which  you  expect  to  derive  fron  previous 
business  relationships,  professional  services,  firm  memberships, 
former  anployers,  clients,  or  customers.  Please  describe  the 
arrangements  you  have  made  to  be  compensated  in  the  future  for 
any  financial  or  business  interest. 

a.  I  intend  to  dissolve  my  law  partnership, 
Melancon  &  Rabalais,  with  my  law 

partner,  Rodney  M.  Rabalais,  in  strict  adherence  to 
and  compliance  with  Cannons  of  the  Code  of  Conduct  for 
United  States  Judges  and  all  rules  and  regulations 
of  the  JudicicLl  Conference  of  the  United  States  and  of  the 
American  Bar  Association  that  relate  thereto.  The 
details  of  the  agreement  to  dissolve  the  partnership 
have  not  yet  been  determined,  but  I  would  expect  to 
receive  periodic  ccnpensation  for  the  sale  of  my 
interest  in  the  partnership. 

b.  As  part  of  my  firm's  fee  for  representing  the  plaintiffs 
in  a  wrongful  death  action  in  1989  I  received  New  York 
Life  Insurance  Conpany  annuity  policy  no.  FP200509, 
annuitant's  no.  1A10530  providing  the  following 
annuity  benefits  stream:  Annuity  payment  of 
$2,193.35  per  month  beginning  01/02/2001,  payable 
while  I  am  living,  or  until  at  least  240  such 
payments  have  be&n  made. 

c.  Through  inheriteince  and  investment,  I  have  royeilty 
and  working  interest  ownership  in  gas  and  oil  wells 
operated  by  Campac  Eighty-Two  Limited  Partnership, 
Jeems  Bayou  Production  Corporation,  Brammer 
Engineering,  and  Fina  that  will  produce  future 
income. 

Explain  how  you  will  resolve  any  potential  conflict  of  interest, 
including  the  procedure  you  will  follow  in  determining  these 
areas  of  concern.  Identify  the  categories  of  litigation  and 
financial  arrangements  that  are  likely  to  present  potential 
conflicts-of -interest  during  your  initial  service  in  the 
position  to  which  you  have  been  nominated. 


-9- 


270 


I  will  not  sit  on  or  participate  in  amy  case  in  which 

my  law  partner,  Rodney  M.  Rabalais,  or  anyone 

associated  with  my  law  partner  has  an  interest. 

I  will  not  sit  on  any  case  involving  a  former 

client  for  the  period  prescribed  by  the 

Code  of  Conduct  for  United  States 

Judges.  I  will  not  sit  on  any  cases  involving 

a  person,  corporation,  or  partnership  with 

vi*iich  I  have  a  business  or  financial  interest. 

By  aiploying  the  foregoing  procedure, 

I  do  not  anticipate  any  conflicts  of  interest 

during  my  initial  service  on  the  bench.  Should  a 

conflict  arise  I  will  follow  the  guidelines  of  the 

Code  of  Conduct  for  United  States  Judges. 

3.  Do  you  have  any  plans,  cornutments,  or  agreenents  to  pursue 
outside  employment,  with  or  without  compensation,  during 
your  service  with  the  court?  If  so,  explain. 

No. 

4.  List  sources  and  amounts  of  all  inccne  received  during  the 
calendar  year  preceding  your  nanination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest,  gifts,  rents,  royalties,  patents,  honoreiria, 

and  other  itenns  exceeding  $500  or  more  (if  you  prefer  to 
do  so,  copies  of  financial  disclosure  report,  required 
by  the  Ethics  in  Government  Act  of  1978,  may  be  substituted 
here ) . 

My  Financial  Disclosure  Report  is  attached  hereto. 

5.  Please  ccmplete  the  attached  financial  net  vorth  statanent  in 
detail  (Add  schedules  as  called  for). 

My  Financial  Statement  is  attached  hereto. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political 
campaign?  If  so,  please  identify  the  particulars  of  the 
campaign,  including  the  candidate,  dates  of  the  campaign, 
your  title  and  responsibilites. 

Yes. 

1992      State  wide  Co-Chair,  Louisiana  Democratic  Party 
"Victory  Fund  '92"; 

1990      Fifth  Congressional  District  of  Louisiana 

Ctoordinator,  Senator  J.  Bennett  Johnston's 
U.  S.  Senate  re-election  campaign; 


-10- 


271 


1986      District  coordinator.  Congressman  Jc*in  Breaux's 

U.  S.  Senate  Campaign; 
1984      Eighth  Congressional  District  of  Louisiana, 

co-coordinator  for  Mondeile/Ferrciro  ticket; 
1984      Eighth  Congressional  District  of  Louisiana 

coordinator  for  Senator  Gary  Hart 

Since  1985  in  my  capacity  as  Democratic  National  Ccnniitteenan ,  I  have 
made  appearances  with  or  on  b^iailf  of  numerous  Danocratic  candidates 
for  national,  state,  and  local  office. 

III.  GaiERAL  (POBLIC) 

1.  An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  scsne  time  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilites,  listing  specific  instances 
and  the  amount  of  time  devoted  to  each. 

Due  to  the  nature  of  my  firm's  practice  and  the  size  of  the 
city  and  parish (county)  which  we  serve,  pro  bcxio  legad.  work  is 
regularly  provided  to  pec^le  who  cstfinot  afford  to  retain  an 
attorney  on  a  walk  in  basis.  My  firm  and  I  eilso  participate 
in  a  program  sponsored  by  Acadiana  Legal  Service  Corporaticxi, 
formerly  Central  Louisiana  Legal  Services,  Iik:.  in 
providing  legal  services  for  people  who  cemnot  aif ford  to 
retain  an  attorney  in  civil  cases  at  a  nominal  hourly 
rate  of  $25.00  for  work  performed  out  of  court  and  $35.00 
for  court  aRjearamces  with  a  maximum  fee  of  $250.00  per  case. 
Prior  to  establishment  of  an  indigent  defaider  systan 
for  criminal  defendants  in  Avoyelles  Parish,  Louisiana, 
I  voluntarily  participated  in  the  court  sponsored 
indigent  defender  program.   The  amount  of  time  devoted 
to  pro  bono  and  Acadian  Legal  Services  varies,  but  would 
average  4  to  6  hours  per  month. 

2.  The  American  Bar  Association's  Conmentary  to  its  Code  of  Judicial 
Conduct  states  that  it  is  inappropriate  for  a  judge  to  hold 
manbership  in  any  organization  that  invidiously  discriminates 

on  the  basis  of  race,  sex,  or  religicm.  Do  you  currently 
belong,  or  have  you  belonged,  to  any  organization  v*iich 
discriminates — through  either  formal  membership  requiranents 
or  the  practical  implonentation  of  manfaership  policies?  If 
so,  list,  with  dates  of  manbership.  What  you  have  done  to 
try  to  change  these  policies? 

No. 

3.  Is  there  a  selection  commission  in  your  jxirisdiction  to  recommend 
candidates  for  nomination  to  the  federal  courts?  If  so,  did  it 
recatinend  your  nomination?  Please  describe  your  experience  in 
the  entire  judicial  selection  process,  from  beginning  to  end 


-11- 


272 


(including  the  circumstances  which  led  to  your  nomination  and 
interviews  in  which  you  participated) . 

There  is  no  selection  ccnmission  for  Louisiana.  I  met  with 
Senator  John  Breaux  and  Senator  J.  Bennett  Jc*inston.  I  also  spoke 
with  Congressmen  William  Jefferson,  Billy  Tauzin,  Cleo  Fields, 
Jiimiy  Hays,  and  Governor  Edwin  Edwards.  I  was  contacted  by  the 
Clinton  Administration,  filled  out  various  forms,  interviewed  at 
the  Etepartment  of  Justice,  interviewed  by  an  agent  of  the  Federal 
Bureau  of  Investigation  and  interviewed  by  a  representative  of 
the  American  Bar  Association. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a  judicial 
ncminee  discussed  with  you  any  specific  case,  legal  issue  or 
question  in  a  tianner  that  could  reasonably  be  interpreted  as 
asking  how  you  would  rule  on  such  case,  issue,  or  question? 

If  so,  please  explain  fully. 

No. 

5.  Please  discuss  your  views  on  the  following  criticism  involving 
"judicial  activism." 


The  role  of  the  Federal  judiciary  within  the  Federal  government, 
and  within  society  generally,  has  beccme  the  subject  of  increasing 
controversy  in  recent  years.  It  has  become  the  target  of  both 
popular  and  academic  criticism  that  alleges  that  the  judicial 
branch  has  usurped  many  of  the  prorogativos(sic)  of  other  branches 
and  levels  of  government. 


Sane  of  the  characteristics  of  this  "judicial  activism"  have  been  said 
to  include: 

a.  A  tendency  by  the  judiciary  toward  problem-solution  rather 
than  grievance-resolution; 


A  tendency  by  the  judiciciry  to  ^nploy  the  individual 
plaintiff  as  a  vehicle  for  the  imposition  of  far- 
reaching  orders  extending  to  broad  classes  of 
individuals; 


A  tendency  by  the  judiciary  to  impose  broad,  affirmative 
duties  upon  governments  and  society; 


d.  A  tendency  by  the  judiciary  toward  loosening  jurisdictional 


-12- 


273 

requirsnents  sudi  as  standing  and  ripeness;  and 


e.  A  tendency  by  the  judiciary  to  inpose  itself  upon  other 
institutions  in  the  manner  of  em  administrator  with 
continuing  oversight  responsibilities. 


The  United  States  Constitution's  establishment  of  three 
separate  and  co-equeil  brauiches  of  government  is  the  cornerstone 
of  our  Republic.  If  the  Judicial  Brainch  is  to  fulfill  its 
constitutional  role,  I  believe  traditioneil  jurisdictional 
requiranents  such  eis  stemding  and  ripeness  must  be  adhered  to. 

While  the  Judicial  Breinch  heis  the  duty  to  ensure  that  the 
actions  of  the  Legislative  and  Executive  Branches  meet 
constitutional  standards,  I  believe  the  proper  role  of  the 
Judiciary  is  to  resolve  the  dispute  of  the  parties  before 
the  Court  in  a  manner  so  that  the  decision  eiffects,  to  the 
extent  possible,  only  the  parties.  That  is  not  to  say,  with 
the  canplexities  of  human  society,  situations  do  not  eirise 
where  in  reaching  a  resolution  of  the  dispute  between  the 
parties  a  court's  decision  will  not  have  far-readiing  effects. 
That  a  decision  may  have  feir-reaching  effects  should  not  deter 
the  Court  from  resolving  the  dispute  of  the  parties  before  it, 
if  jurisdictional  requirements  are  met.  In  resolving  the  dispute 
between  the  parties  the  doctrine  of  Stare  Decisis  should  be 
followed  vrtien  ^pliceLble. 

My  e^qjerience  eis  a  lawyer  in  dealing  with  oourts  with 
continuing  oversight  responsibilites  has  been  limited,  but  has 
led  me  to  believe  that  such  procedure  should  be  used  sparingly 
emd  only  as  a  last  resort.  Care  must  be  taken  to  assure  that 
the  overseeing  court  is  not  usurping  administrative  or  legislative 
power.  Rather  than  assisting  in  resolving  disputes  and 
encouraging  settlanent,  my  personal  experience  has  been  that 
additional  litigation  has  resulted,  attorney's  fees  and  related 
e^qpenses  are  increased,  and  disputes  that  could  and  should  be 
resolved  by  parties  are  not. 


-13- 


274 


APPENDIX  II 
CASE  #2 

NAME  OF  CASE: 

Caxol  Ann  Lachney  Turner,  et  ail  vs.  United  States  Fidelity  &  Guarantee 
Insurance  Canpany,  et  al 

CX)URr  AND  CASE  DOCKET  NO. : 


Twelfth  Judicial  District  Court  of  LouisicUia 
Suit  #87-U31-A 

United  States  District  Court 
Western  District  of  Louisiana 
Alexandria  Division 
Suit  #87-0441 

PERIOD  OF  REPRESENTATION; 

October  15,  1986  to  March  23,  1989 

PARTY  I  REPRESENTED  AND  NATURE  OF  MY  PARTICIPATION  IN  THE  LITIGATION; 

Carol  Ann  Lachney  Turner,  individually  and  as  duly  appointed  Natural  Tutrix 
of  her  minor  children,  Tanisha  Sheree  Turner,  Nacmi  Anganette  Turner,  Jason 
Edvgard  Turner  &  Hillary  Scott  Turner,  and  Scdarina  Turner  Deville,  sole 
counsel 

NAME,  ADDRESS  AtP  TELEPHONE  NUMBER  OF  COUNSEL  FOR  EACH  OTHER  MAJOR  PARTY; 

Leunry  A.  Stewart 

Stafford,  Stevrart  &  Potter 

P.O.  Box  1711 

Alexandria,  LA  71309 

(318)  487-4910 

Attorney  for  United  States  Fidelity  &  Guarcuity  Caipany 

Madison  C.  Moseley 

Blue,  Williams  &  Buckley 

3421  North  Causeway  Boulevard 

9th  Floor 

Metairie,  LA  70002 

(504)  831-4091 

Attorney  for  Northfield  Insureince  Company 

*  There  were  several  other  counsel  for  other  defendants,  but  those  listed 
above  were  the  attorneys  for  the  major  defendants. 


-2- 


275 


APPENDIX  II 
CASE  #2  -  PAGE  2 

SUMMARY  OF  THE  CASE; 

This  wrongful  death  action  arose  out  of  an  accident  that  occurred  on 
October  I,  1986.  My  clients'  husband  and  father  was  killed  when  he  drove  a 
truck  into  the  side  of  cin  18  wheeler  truck-trailer  that  was  straddling  the 
road  after  becoming  stuck  on  the  shoulder  of  the  road  while  attempting  to 
nake  a  U  turn.  The  deceased's  truck  was  struck  from  the  recir  by  a 
Volkswagen,  which  resulted  in  the  death  of  the  driver  and  severe  injury  to 
a  passenger.  The  two  cases  were  consolidated  for  trial  purposes.  There 
was  a  serious  question  eibout  the  defendants'  liability  because  of  the 
status  of  the  truck  driver,  enployee  or  independent  contractor.  Several 
days  prior  to  trieil,  my  clients'  claims  were  settled  by  structvared 
settlaient  and  cash  with  a  total  value  of  $587,500.00. 


-3- 


276 


APPENDIX  II 
CASE  #3 

NAME  OF  CASE; 

Mathilda  Gaspard  Prevot,  individxially  and  as  Natural  Tutrix  of  the  Minor, 
Julie  Ann  Prevot,  and  Mary  Elizabeth  Prevot,  as  Natural  Tutrix  of  the 
Minor,  Sarah  M.  Lee  Prevot  vs.  Government  Einployee's  Insurance  Cotpany 

COURT  AND  CASE  DOCKET  NO. : 


Twelfth  Judicial  District  Court  of  Louisiana 
Suit  #87-14628-A 

PERIOD  OF  REPRESENTATION; 

October  1,  1987  to  April  1,  1989 

PARTY  I  REPRESENTED  AND  NATURE  OF  MY  PARTICIPATION  IN  THE  LITIGATION; 

Mathilda  Gaspard  Prevot,  individually,  amd  as  Natural  Tutrix  of  the  minor, 
Julie  Ann  Prevot,  sole  counsel 

NAME,  ADDRESS  AND  TELEPHONE  NUMBER  OF  COUNSEL  FOR  EACH  OTHER  PARTY; 

Nelson  M.  Lee 

P.O.  Box  88 

Bunkie,  LA  71322 

(318)  346-2364 

Attorney  for  Mary  Elizabeth  Cecil  Prevot,  as  Natural  Tutrix  for  the  minor, 

Sarah  M.  Lee  Prevot 

Russell  L.  Potter 

Stafford,  Stewart  &  Potter 

P.O.  Box  1711 

Alexandria,  LA  71309 

(318)  487-4910 

Attorney  for  Government  Employees  Insurance  Conpany 

SUMMARY  OF  THE  CASE; 

This  wrongful  death  action  arose  out  of  the  death  of  my  clients'  husband 
eind  father  and  two  other  men  in  a  single  car  accident  that  occurred  on 
August  30,  1987.  No  witnesses  to  the  accident  could  identify  which  of  the 
three  men  was  driving  the  vehicle  at  the  time  of  the  accident.  Conflicting 
claims  were  made  by  the  heirs  of  each  of  the  three  men.  Separate  suits 
filed  by  the  three  men's  heirs  were  consolidated  for  trial.  Several  days 
prior  to  trial,  my  clients'  claims  were  settled  by  structured  settlement 
and  cash  with  a  total  value  of  $400,000.00. 


277 


APPENDIX  II 
CASE  #4 

NAME  OF  CASE; 

James  J.  Ponthier  vs.  Bill  Belt,  in  his  Capacity  as  duly  Elected  Sheriff  of 
Avoyelles  Parish,  Louisiana 

COURT  AND  CASE  DOCKET  NO.: 


Twelfth  Judicial  District  Court  of  Louisiana 
Suit  #90-5111-8 

PERIOD  OF  REPRESENTATION; 

NovOTber  2,  1989  to  November  30,  1991 

PARTY  I  REPRESENTED  AND  NATURE  OF  MY  PARTICIPATION  IN  THE  LITIGATION; 

James  J.  Ponthier  and  Phyllis  Ponthier  -  sole  counsel 

NAME,  ADDRESS  AND  TELEPHONE  NUMBER  OF  COUNSEL  FOR  EACH  OTHER  MAJOR  PARTY; 

Donald  C.  Brown 

Woodley,  Williams,  Fenet,  Palmer,  Boudreaux  &  Norman 

P.O.  Drawer  EE 

Lake  Charles,  LA   70602-3731 

(318)  433-6328 

Attorney  for  Bill  Belt  &  Louisiana  Sheriff's  Risk  Management  Program 

Allen  T.  Usry 

Usry  &  Weeks 

P.O.  Box  6645 

Metairie,  LA  70002 

(504)  833-4600 

Attorney  for  Bill  Belt  &  Louisiana  Sheriff's  Risk  Management  Program 

SUMMARY  OF  THE  CASE; 

This  personal  injury  ccise  curose  as  a  result  of  the  escape  of  three  inmates 
frati  the  Avoyelles  Parish  Jail  in  Marksville,  Louisicina,  and  the  encounter 
that  plaintiff,  his  wife  and  children  had  with  the  inmates  at  plaintiff's 
home  on  the  night  of  the  escape.  As  a  result  of  the  encounter,  plaintiff 
suffered  psychiatric/psychological  damages  due  to  a  pre-existing 
psychological  condition.  The  Ccise  was  settled  several  days  before  the 
trial  for  the  sum  of  $130,000.00.  After  the  conclusion  of  this  case,  I  was 
retained  as  attorney  for  the  Avoyelles  Parish  Sheriff's  Department  and  the 
Louisiana  Sheriff's  Risk  Management  Program. 


-5- 


278 


FINANCIAL    DISCLOSURE    REPORT 


Report  Required  by  t>.e  T'ir.:zs 
Relorm  Act  of  1985,  Pub.  1.  No 
101-194.   November  3?,  1?=5 

(S  u  s.c-A.  Aup.  €.  ioi-::i 


Person  Sei>orti.r.o    i  L-^s"    r.aine,    first ,    middle    in  it;,  a 


MELANCON,  TUCKER  L. 


4.  Title   lArticie  III  judges  indicate  active  or 

senior  status ,-  Magistrate  judges  indicate 
full-  or  part-time) 

NOMINEE-ARTICLE  III  JUDGE 


7.  Chambers  or  Office  Address 

ROOM  201,  FEDERAL  BUILDING 
2  01  JACKSON  STREET 
MONROE,  LOUISIANA   71201 


2,    Cc-rz   or  Organization 


USDC  FOR  W.DIST  OF  LA- MONROE 


5  Report  Type  (check  appropriate  type) 
•/   Nomination,  Date  ll/ie/93 
^  :.-.itial  Annual  Final 


Daze  of   =»=orc 


D    11/19/93 


6  -    Reporting   Pericd 

1/1/92-11/19/913 


On  ;he  basis  of  the  information  contained  in  this  Report,  i; 
is,  in  my  opinion,  in  compliance  with  applicable  laws  and 
regulations  


Reviewing  Officer  Signature 


IMPORTANT  NOTES:  The  inslructions  accompanying  ihis  form  must  be  followed.     Complete  all  parts, 
checking  the  NONE  box  for  each  section  where  you  have  no  reportable  information.     Sign  on  last  page. 


I.      POSITIONS.       (Reporting  individual  only;  see  pp.  7-8  oflnstructions.) 


n 


POSITION 

NONE    (No  reportable  positions) 


MANAGING  PARTNER 


TRUSTEE 


CONSULTANT 


NAME  OF  ORGANIZATION /ENTITY 

MELANCON  &  RABALAIS.  ATTORNEYS  AT  LAW 

MELANCON  &  RABALAIS  PEN  &  PROF  SHARING  TRUST 
KEROTEST  MANUFACTURING  CORPORATION 


II.     AGREEMENTS.       (Reporting  individual  only,  see  pp.  8-9  of  instructions.) 

DATE  PARTIES  AND  TERMS 


Q 


NONE    (No  reportable  agreements) 


III.     NON-INVESTMENT  INCOME.       (Reporting  individual  and  spouse;  see  pp.  9-12  of  Instructions.) 


DATE 

{Honoraria  only) 


n 


SOURCE  AND  TYPE 

NONE    (No  reportable  non- investment  income) 


GROSS  INCOME 

(yours ,  nc:  spouse" s) 


1992  MELANCON  &  RABALAIS.  ATTORNEYS  AT  LAW-NET  BUSINESS  INCOME    $  141711.00 

1993  MELANCON  U    RABALAIS.  ATTORNEYS  AT  LAW-GROSS  BUSINESS  INCOME  $  246500.00 

19  92      CATALYST  OT.D  RIVER  HYDRO  ELEC  LTD  PTN-BOARD  OF  ADVISOR  FEES  $ 2500.00 

1992/93   CATALYST  VTDALIA  CORPORATION -BOARD  OF  DIRECTORS  FEES $ 17000.00 

19  92      MARATHON  OIL  COMPANY  -  OIL  ROYALTY $ 578^,00 


279 


FINANCIAL  STATEMENT 

NETT  WLKi'H 

NC3VQ1BER  1,    1993 


Provide  a  complete,  cnricnt  financial  net  wonh  sutement  which  itemizes  In  detail 
all  assets  (including  HanV-  accounts,  real  estate,  securities,  tnsts,  investments,  and  other  financial 
holdings)  all  liabilities  Ondnding  debts,  mongages,  loans,  and  other  financial  obligations)  of 
yourself,  your  spouse,  and  other  Immediate  memben  of  your  household. 


ASSETS 

UABlUnES 

Cub  oa  band  and  in  banb 

25 

000 

00 

Nolea  pa/able  to  baab-aaeurcd 

VS.  Cevusfflcnt  Meuridt*—adi 
(cbedal* 

Lined  Keuritia— add  jchcduli 

16 

931 

33 

Notn  payabl*  Is  relatives 

35 

858 

2 

1  Unlittcd  iceuritici-add  achedul* 

55 

693 

16 

Nolu  payaUa  ts  elhea 

Ascoonu  and  neiet  xeeivablc; 

Aeeennu  aod  bOlt  du« 

Dm  bom  nlativti  and  ftiandf 

Unpaid  iaeaaia  lax 

Due  fitsin  othcra 

Oihtr  nnpaid  lax  and  intenat 

DoubtfJl 

Real  aalale  mangagca  payaUe-add 
achedult 

191 

601 

0 

Real  ealate  ewncd-add  achedult 

390 

809 

22 

Ousel  mottgagea  aid  other  Ueiu  pay. 
abla 

Real  ctuie  niorl<a(e>  recchrabl* 

Other  debu-iioniza: 

Aulet  and  ether  peneoa!  property 

202 

900 

00 

Cub  value-life  iniuraiiei 

4 

716 

77 

Tnrlivirlial  R°HihihiI    A  1 1  i»il»,,T»Tigim 

0 

&  Pinfit  Sharing  A  i.i.i.iiiLb  &  ftmity 

300 

556 

36 

113 

890 

00 

Total  Sabmtiat 

227 

459 

MXTETldl   IllttiLtiibi 

J' 

NetWoift 

883 

037 

5( 

ToUl  AtUtM 

1.110 

4'?fi 

94 

Teul  liabmtist  an]  net  »onh 

1,110 

496 

8- 

CO.VnNCENT  UABlLinES 

GENERAL  INFORMATION 

As  eodarter,  comaker  or  guarantor 

81 

930 

78 

Are  any  aaaeti  pledged?  (Add  ached, 
ult.) 

No 

Ob  Icaaet  or  oon»acU 

KriMP. 

Are  yea  deteodant  in  aey  tolu  or  legal 
acdoniT 

No 

Legal  Qiisu 

NONE 

Hare  you  ever  taba  banfavpieyj 

No 

nrevuion  tot  Fedeti]  Incomt  T« 

NOTE 

OjMr  tpeeUl  debt 

NONE 

== 

280 


TUCKER  L.  MELANOON  &  KATHEEUNE  ASCHER  METANOON 
FINANCIAL  STATEMENT 
NET  V«QRTH 
November  1,  1993 


ASSETS 


I.  LISTED  SECURITIES 

1.  Fifty  (50)  shares  of  Life  Insurance  Conpany 

of  Alabama,  $5.00  par  value,  as  of 

12/10/92  775.00 

2.  One  hundred  nine  (109)  shares  of  Life 

Insurcince  Conpany  of  Alabana,  $1.00  par 

value,  as  of  12/10/92  218.00 

3.  Five  hundred  ten  (510)  sheures  of  American 

General  Corporation  comnon  stock  14,988.90 

4.  36.7  shares  of  Janus  Twenty  Fund,  Inc.  949.43 

TOTAL  VALUE  OF  LISTED  SECURITIES  $   16,931.33 

II.  UNLISTED  SECURITIES 

1.  Twenty-five  (25)  shares  of  Mar-Dan  Enterprises, 

Ltd.,  d/b/a,  Melancon  Funeral  Hone  &  Monument 

Company,  Bunkie,  Louisiana,  r^resenting 

twenty-five  per  cent  (25%)  of  the 

outstanding  stock  50,000.00 

2.  Fifty- two  (52)  shares  of  Mansura  Bancshares, 

Inc.,  Mansura,  Louisicuia  693.16 

3.  Ninety  (90)  shares  of  Southeast  Central 

Louisiana  Premium  Finance  (Zcmpany, 

Cottonport,  Louisicina,  representing  ten 

per  cent  (10%)  of  the  outstanding  stock         5,000.00 

TOTAL  VALUE  OF  UNLISTED  SECURITIES  $   55,693.16 

III.  REAL  ESTATE  OWNED 

1.  Camp  and  4  lots.  Second  Wcurd, 

Avoyelles  Parish,  Louisiana  15,000.00 

2.  62.39  acres,  Allen  Parish,  Louisiana 

undivided  33.33%  interest  8,318.66 

3.  14.25  acres.  Union  Parish,  Louisiana 

undivided  33.33%  interest  2,375.00 

4.  80  acres,  Desoto  Parish,  Louisiana 

undivided  6.667%  interest  2,134.40 


281 


5.  50  acres,  Desoto  Parish,  Louisicina 

undivided  6.667%  interest  1,333.33 

6.  40  acres,  Desoto  Parish,  Louisiana 

undivided  33.33%  interest  5,333.33 

7.  80  acres,  Desoto  Parish,  Louisiana 

undivided  1.6%  interest  512.00 

8.  238.5  acres.  Red  River  Parish,  Louisicina 

undivided  1.2%  interest  1,045.00 

9.  22.63  acres,  Avoyelles  Parish,  Louisiana 

undivided  50%  interest  5,657.50 

10.  Family  home  located  at  604  North  Monroe 

Marksville,  Louisiana  150,000.00 

11.  Unit  #A  of  the  122  East  Mark  Street 

Condominium,  Marksville,  Louisiana  100,000.00 

12.  Condcminium,  San  Diego,  California  99,000.00 

13.  Lot  located  in  Section  10,  T9S, 

R5E,  St.  Martin  Parish, 

Louisiana  100.00 

TOTAL  VALUE  OF  REAL  ESTATE  OWNED  390,809.22 


282 


TUCKER  L.  MELANOON  &  KATHERINE  ASCHER  MEEANCON 
FINANCIAL  STATEMENT 
NBI  WCKTH 
NOVEMBER  1,  1993 


LIABILITIES 

I.  REAL  ESTATE  MORTGAGES  PAYABLE 

1.  Cottonport  Bank,  Cenla  Branch,  Marksville, 

Louisiana  62,947.14 

2.  Great  Western  Savings,  Northridge, 

California  18,803.60 

3.  Hibernia  NationeLL  Bank,  Alexauidria, 

Louisiana  93,992.06 

4.  Future  Holder,  Betty  Lee  Circle, 

San  Diego,  California  15,858.27 

TOTAL  REAL  ESTATE  MORTGAGES  PAJaBLB  $     191,601.07 


283 


APPENDIX  I 
CASE  #1 


NAME  OF  CASE; 

Rachel  Littleton  Charrier  vs.  Oak  Haven  Nxirsing  Hone,  Inc. 

TRIAL  COURT  AND  CASE  DOCKET  ^P. 

Twelfth  Judicial  District  Court  of  Louisaina,  docket  #89-3993 

CITATION  OF  CASE  IF  REPORTED; 

Not  applicable. 

PARTY  I  REPRESENTED  AND  NATURE  OF  MY  PARTICIPATION  IN  THE  LITIGATION; 

Plaintiff,  Rachel  Littleton  Charrier,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

March  8,  1991 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Harold  J.  Brouillette,  Judge,  Twelfth  Judicial  District  Court, 
Division  "B" 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  CO-OOUNSEL; 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  COUNSEL  F(»  EACH  OTHER  PARTY; 

Joseph  Kutch 
P.  0.  Box  8028 
Pineville,  Louisiana  71360 
(318)  442-4989 

SUMMARY  OF  THE  CASE; 

This  workers'  canpensation  claim  arose  out  of  a  June  8,  1989  accident. 
Suit  was  filed  on  October  25,  1989,  resulting  in  defendant's  insurer 
agreeing  to  pay  past  due  medical  travel  expenses,  statutory  penalties,  and 
attorney's  fees.  Defendant's  insurer  continued  to  pay  weekly  workers' 
compensation  cind  other  benefits  due  under  the  Louisiana  Workers' 
Canpensation  Act  until  it  failed  to  timely  pay  a  charge  for  physical 
therapy  services  rendered  to  plaintiff.  On  January  7,  1991,  a  Rule  to  Show 


-1- 


284 


APPENDIX  I 
CASE  #1,  PAGE  2 


Cause  Why  Mediceil  Expenses  Under  the  Louisiana  Workers'  Compensation  Act 
Should  Not  be  Paid,  for  Peialties,  Interest,  and  Attorney's  Fees  was  filed. 
Extensive  discx>very  was  conducted  including  taking  the  deposition  of  the 
adjuster  hcmdling  the  claim  for  the  insurer  and  the  deposition  of  the 
branch  claims  manager.  Numerous  other  discovery  requests,  including 
Subpoena  Duces  Tecum  for  interned,  documents  amd  medical  records.  Request 
for  Admissions,  and  Interrogatories,  were  filed.  Defendants,  through  their 
attorney,  filed  a  Motion  for  Sanctions  agadnst  me  alleging  that  the  sixty 
day  time  period  set  out  in  the  Louisiana  Workers'  Compensation  Act  for 
payment  of  medical  expenses  after  receipt  had  not  elapsed  when  I  filed 
plaintiff's  Rule.  The  defendcints  cilso  filed  Exceptions  of  No  Cause  of 
Action  and  in  the  alternative,  Prenaturity.  In  response  to  defendant's 
Motion  for  Saxictions,  I  filed  an  amswer  eu»d  request  for  reasonable  expenses 
eind  attorney's  fees. 

FINAL  DISPOSITION  OF  THE  CASE; 

The  trial  on  the  merits  of  the  Rule  was  conducted  on  Mcurch  8,  1991. 
Judgment  was  rendered  in  plaintiff's  favor  dismissing  defendant's 
Exceptions,  granting  judgment  in  favor  of  plaintiff  for  medical  expenses 
incurred,  finding  defendants  arbitrary  and  capricious  in  failing  to  timely 
pay  plaintiff's  medical  expenses  and  awarding  attorney's  fees.  Defendant's 
request  for  sanctions  was  denied  auid  sanctions  were  greuited  in  favor  of 
plaintiff  and  me  against  defendants  and  their  attorney  for  expenses 
incurred  in  defending  the  Motion  for  Sanctions. 


-2- 


285 


APPENDIX  I 
CASE  #2 

NAME  OF  CASE; 

State  of  Louisiana,  through  the  Departnient  of  Health  &  Human  Resources, 
Office  of  Fandly  Security  in  the  interest  of  Codi  Chenvert  vs.  Dale  Clark 

TRIAL  COURr  AND  CASE  DOCKET  NO. 


Twelfth  Judicial  District  Court  of  Louisiana,  docket  #88-2503-A 
Court  of  Appeal,  Third  Circuit,  State  of  Louisiana,  docket  #91-6 

CITAnON  OF  CASE  IF  REPORTED; 

Not  applicable — not  designated  for  publication. 

PARTY  I  REPRESENTED  AND  NATURE  OF  NK  PARTICIPATION  IN  THE  LITIGATION; 

Defendant,  Dale  Clark,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

October  23,  1990 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Michael  J.  Johnson,  Judge  Twelfth  Judicial  District  Court, 
Division  "A" 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  CO-COUNSEL: 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  COUNSEL  FOR  EACH  OTHER  PARTY; 

Carl  Koehler,  Staff  Attorney 
State  of  Louisiana 
900  Murray  Street 
Alexandria,  Louisiana  71301 
(318)  487-5202 

SUMMARY  OF  THE  CASE; 

The  State  of  Louisiana  filed  suit  against  the  defendant  to  establish 
paternity  and  support  for  a  minor  child  allegedly  born  out  of  a  sexual 
relationship  with  the  child's  mother.  Defendant  admitted  having  one  act  of 
sexual  intercourse  with  the  child's  mother,  but  denied  that  he  was  the 
father  of  the  child,  that  he  had  ever  acknowledged  he  was  the  father  of  the 
child,  or  that  he  had  offered  money  to  the  mother  of  the  child  or  the 


-3- 


286 


APPENDIX  I 
CASE  #2 

grandmother  of  the  child  to  assist  with  medical  eiqjenses  incurred  in 
connection  with  the  birth  of  the  child.  Suit  was  filed  on  September  16, 
1988.  Defendant  was  ordered  to  undergo  a  blood  test  by  the  court.  The 
blood  test  resulted  in  a  ocmbined  paternity  index  of  104  to  1  eind  a 
probability  of  paternity  of  99.05%  as  compared  to  an  untested,  unrelated 
man  of  the  North  American  Caucasian  population.  The  depositions  of  the 
mother  and  severed  of  her  witnesses  were  taken. 

FINAL  DISPOSITION  OF  THE  CASE: 

After  several  delays,  tricil  on  the  merits  was  conducted  on  October  23, 
1990.  At  the  close  of  the  State's  case,  judgment  was  rendered  in  favor  of 
defendant.  On  Novanber  27,  1990,  the  State  filed  a  Motion  to  Appeal  the 
trial  court's  decision  with  the  Court  of  ^^jpeal.  Third  Circuit  of  the  State 
of  Louisiana.  The  Court  of  Appeal  considered  the  matter  without  argument 
on  briefs  submitted  by  the  parties  and  on  May  12,  1992,  in  a  percuriam 
opinion,  upheld  the  tried  court. 


-4- 


287 


APPENDIX  I 
CASE  #3 

NAME  OF  CASE; 

Johnny  H.  Dauzat  vs.  Mardel  Products  Co.,  Inc. 

TRIAL  COURT  AND  CASE  DOCKET  NO. 

Twelfth  Judicial  District  Court  of  Louisiana,  docket  #90-4258-A 

CITATION  OF  CASE  IF  REPORTED; 

Not  applicable. 

PARTY  I  REPRESENTED  AND  NATURE  OF  MY  PARTICIPATION  IN  THE  LITIGATION; 

Defendant,  Mardel  Products  Co.,  Inc.,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

August  7,  1990 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  William  A.  Culpepper,  retired  Judge,  Third  Circuit  Court  of 
Appeal,  sitting  ad  hoc  by  appointment  of  the  Louisiaina  Supreme  Court. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  00-OOUNSEL: 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  COUNSEL  FOR  EACH  OTHER  PARTY; 

Thomas  R.  Wilson 

P.  0.  Drawer  1630 

Alexandria,  Louisiana  71309-1630 

(318)442-8658 

SUMMARY  OF  THE  CASE; 

This  workers'  compensation  case  arose  as  a  result  of  an  alleged  back  injury 
suffered  by  plaintiff  on  August  25,  1989,  while  making  a  delivery  of  wood 
products  for  defendant.  Plaintiff  filed  suit  on  January  24,  1990,  after 
going  through  the  administrative  procedure  then  in  effect  with  the 
Louisiana  Office  of  Workers'  Ccrnpensation  Administration.  Several 
depositions  were  taken  including  plaintiff's  deposition  and  plaintiff's 
treating  physician's  deposition;  extensive  interviews  with  fact  witnesses 
and  co-vrorkers  were  conducted. 


-5- 


288 

FINAL  DISPOSITION  OF  THE  CASE: 

Trial  of  the  matter  tcok  place  on  August  8,  1990,  euid  Written  Reasons  for 
Judgment  were  handed  dcwn  on  September  26,  1990.  Judgment  was  signed  on 
October  3,  1990,  dismissing  plaintiff's  claim  at  his  cost. 


-6- 


289 


APPENDIX  I 
CASE  #4 

^^AME  OF  CASE; 

Ronald  J.  Dalgo  vs.  Martco  Partnership 

TRIAL  COURT  AbO  CASE  DOCKET  NO. 

Twelfth  Judicial  District  Court  of  Louisiana,  docket  #89-3430 
Third  Circuit  Court  of  Appeal,  State  of  Louisiana,  docket  #90-272 

CITATION  OF  CASE  IF  REPORTED; 

Not  designated  for  publication. 

PARTY  I  REPRESENTED  AND  NATURE  OF  M^  PARTICIPATION  IN  THE  LITIGATION; 

Plaintiff,  Ronald  J.  Dalgo,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

October  31,  1989 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  William  A,  Culpepper,  retired  Judge,  Third  Circuit  Court  of 
;^3peal,  sitting  ad  hoc  by  appointment  of  the  Louisiana  Supreme  Court 

NAME,  AEPRESS,  AND  TELEPHONE  NO.  OF  OO-OOUNSEL; 

Not  applicable. 

NAME,  ADE»ESS,  AND  TELEPHONE  NO.  OF  COUNSEL  FOR  EACH  OTOER  PARTY; 

John  F.  Wilkes,  III 

ONEBANE,  DONOHOE,  BERNARD,  TORIAN,  DIAZ,  MCNAMARA,  &  ABELL 

P.  0.  Drawer  3507 

Lafayette,  Louisicina  70502 

(318)237-2660 

SUhlARY  OF  THE  CASE; 

This  workers'  compensation  claim  arose  as  a  result  of  an  injury  to 
plaintiff's  left  knee  which  occurred  on  May  3,  1988.  He  vas  struck  by  the 
carriage  of  a  piece  of  equipment  on  which  he  had  been  working  causing  a 
three  inch  laceration  to  his  knee.  Plaintiff  vras  initially  seen  by 
defendant's  company  doctor,  a  general  practitioner,  who  referred  him  to  an 
orthopaedic  surgeon.  Plaintiff  was  then  referred  to  a  second  orthopaedic 


-7- 


290 


APPENDIX  I 
CASE  #4,  PAGE  2 


sxorgeon  who  specializes  in  knee  surgery.  The  oon^any  orthopaedist  also 
referred  plaintiff  to  a  psychologist  to  participate  in  a  pain  and  trauma 
nanagsnent  program.  Weekly  worters'  ootnpensation  benefits  were  paid  to 
plaintiff  from  the  date  of  his  injury  until  March  10,  1989. 

On  May  30,  1989,  suit  was  instituted  on  plaintiff's  behalf  seeking 
reinstatenent  of  weekly  compensation  benefits,  reimbursement  of  medical 
expenses  incurred  by  or  on  b^alf  of  plaintiff,  penalties,  and  attorney's 
fees.  Pre-trial  discovery  consisted  of  eighteen  depositions,  three  of 
which  were  medical  depositions  amd  fifte«i  fact  depositions.  The  medical 
depositions  indicated  plaintiff  suffered  from  Reflex  Sympathetic  E)ystrophy 
in  his  left  knee  secondary  to  the  trauma  he  eiqperienced  on  May  3,  1988. 
Medical  testimony  also  indicated  Reflex  Synpathetic  E)ystrophy  was  a  little 
known  malady  involving  the  sympathetic  nerve  systan  usually  secondary  to 
trauma,  resulting  in  oonsteint  eind  sometimes  excrutiating  pain. 

FINAL  DISPOSTION  OF  THE  CASE 

The  trial  on  the  merits  of  this  matter  was  conducted  on  October  31,  1989; 
Written  Reasons  for  Judgment  were  filed  on  December  15,  1989,  and  formal 
judgment  was  signed  on  January  11,  1990  dismissing  plaintiff's  suit  at 
plaintiff's  cost.  On  Jemuciry  19,  1990,  a  Devolutive  /^jpeal  was  filed  with 
the  Court  of  ;^3peal.  Third  Circuit,  State  of  Louisicina.  Argument  of  the 
appeal  took  place  on  August  27,  1991  euid  on  October  2,  1991,  judgment  vas 
rendered  affirming  the  tried,  court's  decision. 


-8- 


291 


APPENDIX  I 
CASE  #5 

NAME  OF  CASE; 

Charles  Gene  Kelone  vs.  Insurance  Conpany  of  North  Alter ica/Aetna 
Insurance  Company 

TRIAL  COURT  AND  CASE  DOCKEr  NO. 

Tvgelfth  Judicial  District  Court  of  Louisiana,  docket  #86-9123-A 

CITATION  OF  CASE  IF  REPORTED; 

Not  applicable. 

PARTY  I  REPRESENTED  AND  NATURE  OF  My  PARTICIPATION  IN  THE  LITIGATION; 

Plaintiff,  Charles  Gene  Kelone,  sole  counsel 

DATE  OR   DATES  OF  TRIAL 

June  16,  1989 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED: 

Honorable  B.  C.  Bennett,  Jr.,  Judge,  Twelfth  Judicial  District  Court, 
Division  "A" 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  OO-OOUNSEL; 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  COUNSEL  FOR  EACH  CTHER  PARTY; 

Ronald  J.  Fiorenza 

PROVOSTY,  SADLER,  &  DEIAUNAY 

P.  0.  Drawer  1791 

Alexandria,  Louisiana  71309-1791 

(318)  445-3631 

SUI^IARY  OF  THE  CASE; 

Plaintiff  filed  a  workers'  compensation  suit  on  June  10,  1986  as  a  result 
of  injuries  sustained  on  August  18,  1985.  Plaintiff's  weekly  workers' 
compensation  payment  was  only  $120.00  based  on  his  pre-injury  wage  as  a 
nechanic.  After  suit  was  filed,  plaintiff  was  paid  all  benefits  to  which 
he  was  entitled  under  the  Louisiana  Workers'  Compensation  law.  The  suit 
renained  in  inactive  status  until  March  14,  1989  v*ien  I  received  a 
telephone  call  from  defendant's  adjuster  advising  that  he  wanted  to  settle 


-9- 


292 


APPENDIX  I 
CASE  #5,  PAGE  2 

plaintiff's  claim.  If  the  claim  was  not  settled,  he  vas  going  to  reduce 
plaintiff's  weekly  benefit  to  $30.66  based  on  a  job  market  survey  that  he 
had  had  conducted.  On  March  16,  1989,  defendant  reduced  plaintiff's 
workers'  compensation  benefit  to  the  sum  of  $30.66  per  week.  On  March  28, 
1989,  a  Rule  to  Show  Cause  why  Weekly  Workers'  Corpensation  Benefits  should 
not  be  Reinstated,  for  Penalties,  Interest,  and  Attorney's  Fees  was  filed. 
The  trial  on  the  Rule  was  conducted  on  June  6,  1989.  A  judgment  Wcis 
rendered  in  favor  of  plaintiff  ocn^jelling  defendant  to  reinstitute  weekly 
workers'  compensation  benefits  to  plaintiff  at  the  rate  of  $120.00  per  week 
from  March  16,  1989.  The  insurer  was  cast  with  the  statutory  penalty  and 
ordered  to  pay  attorney's  fees. 

FINAL  DISPOSITION  OF  THE  CASE; 

As  a  result  of  the  judgment  rendered  on  the  Rule,  a  settlement  conference 
was  initiated  with  defendant's  adjuster  and  attorney,  and  an  amicable 
settlement  of  plaintiff's  claim  wais  reached. 


-10- 


293 


APPENDIX  I 
CASE  #6 

NAME  OF  CASE; 

Charles  W.  Pixley,  d/b/a,  Shelter  Mortgage  Ccxipany  vs.  Gulfco 
Investment  Group,  Inc. 

TRIAL  COURT  AND  CASE  DOCKET  NO. 


Twelfth  Judicial  District  Court  of  Louisaina,  docket  #85-7844-A 
Third  Circuit  Court  of  ^peal,  State  of  Louisiana,  docket  #86-1142 

CITATION  OF  CASE  IF  REPORTED; 

Not  applicable. 

PARTY  I  REPRESEIJrED  A^D  NATURE  OF  MY  PARTICIPATION  IN  THE  LITIGATION; 

Defendant,  Gulfco  Investment  Group,  Inc.,  lead  counsel 

DATE  OR  DATES  OF  TRIAL 

July  17  and  July  18,  1986 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Edwin  L.  Laf argue,  Judge  Ad  Hoc,  Twelfth  Judicial  District  Court, 
Division  "A",  sitting  by  appointment  of  the  Louisiana  Supreme  Court. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  CO-OOUNSEL; 

Guy  Marvin 

Vice-President  &  General  Counsel 

Independent  Life  and  Accident  Company 

One  Independent  Drive 

Jacksonville,  Florida   32276 

(904)  358-5600 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  COUNSEL  FOR  EACH  OTHER  PARTY; 

Stephen  M.  Irving,  lead  counsel 
645  Napoleon  Street 
Baton  Rouge,  Louisiana  70802 
(504)  346-8774 

Andrew  B.  Ezell,  co-counsel,  current  address  unknown. 


-11- 


2d4 


APPENDIX  I 

CASE  #6  -  PAGE  2 


SUMMARY  OF  THE  CASE: 


On  September  4,  1985,  plaintiff  filed  suit  against  defendant  for  breach  of 
contract  alleging  damages  of  $4,784,000.00.  Plaintiff  was  a  producer  of 
mortgage  locins  and  pursuant  to  contract  entered  into  between  the  parties 
defendant  was  to  purchase  mortgage  loans  from  plaintiff  that  met  certain 
criteria.  On  Decanber  10,  1985,  defendeint  filed  a  Reoonventional  Danand 
against  plaintiff  in  the  sum  of  $24,378.00  for  money  collected  by  plaintiff 
for  the  benefit  of  defendant  cind  converted  to  his  own  use.  Extensive 
discovery  was  conducted  prior  to  trisLL. 

FINAL  DlSPOSmcyi  OF  THE  CASE; 

A  two  day  judge  trial  resulted  in  a  verdict  in  favor  of  defendeint  rejecting 
plaintiff's  denands  at  plaintiff's  cost  eind  greuiting  judgment  on 
defendant's  Reoonventional  Denand  in  the  sum  of  $20,054.70.  Plaintiff 
appealed  the  district  court  judgmait  to  the  Third  Circuit  Court  of  Appeal. 
Action  on  plaintiff's  c^ipeal  was  stayed  due  to  his  filing  of  bankruptcy. 
After  the  bemkruptcy  stay  was  lifted,  a  nuisance  value  settlement  was  paid 
to  plaintiff  to  end  the  litigation. 


-12- 


295 


APPENDIX  I 
CASE  #7 

NAME  OF  CASE; 

Alvin  Jouglard,  et  ux  vs.  CNA  Insursmce  Company 

TREAL  COURT  AND  CASE  DOCKET  NO. 

Twelfth  Judicial  District  Court  of  Louisiana,  docket  #85-8189-B 

CITATION  OF  CASE  IF  REPORTED; 

Not  applicable. 

PARTY  I  REPRESENTED  AND  NATURE  OF  MSf  PARTICIPAnON  IN  THE  LTTIGATICW; 

Plaintiffs,  Alvin  Jouglard  and  Bertha  Jouglard,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

January  13,  1986 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Harold  J.  Brouillette,  Judge,  Twelfth  Judicial  District  Court, 
Division  "B" 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF   OO-COONSEL; 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  CF  COUNSEL  FOR  EACH  OTHER  PARTY: 

Sam  N.  Poole,  Jr. 

GOLD,  SIMON,  WEEMS,  BRUSER,  SHARP,  SUES  &  RUM3EII. 

P.  0.  Box  6118 

Alexandria,  Louisiana  71307-6118 

(318)  445-6471 


-13- 


296 


APPEtOIX  I 
CASE  #7,  PAGE  2 

Einployee's  parents  filed  a  workers'  ccxnpensation  suit  for  death  benefits 
arising  from  the  September  5,  1985  death  of  plaintiffs'  twenty-six  year  old 
son.  The  claim  was  denied  by  employer's  worker's  compensation  insurer 
forcing  me  to  file  suit  on  November  12,  1985.  Rather  extensive  fact  and 
medical  discovery  had  to  be  conducted  by  deposition  in  what  appeared  to  me 
to  be  a  rather  routine  worker's  compensation  claim.  The  employer's 
insurer,  CNA  Insurance  Conpany,  continued  to  deny  coverage  up  until  the 
actual  morning  of  trial  when  defendant  offered  to  pay  the  statutory  maximum 
per  parent  survivor's  benefit  and  the  statutory  maxixttum  funeral  benefit. 
Based  on  my  advice,  my  clients  elected  not  to  accept  the  defendant's  offer 
and  the  case  was  tried. 

FINAL  DISPOSITION  OF  THE  CASE; 

Judgnent  was  rendered  in  favor  of  plaintiffs  for  the  statutory  maximum 
death  benefit  for  each  parent,  the  statutory  maximum  funeral  benefit, 
msdical  expenses  incurred  in  the  treatment  of  the  deceased  prior  to  his 
death,  statutory  penalties  of  twelve  percent  on  the  foregoing  and 
attorney's  fees. 


-14- 


297 


APPENDIX  I 
CASE  #8 

NAME  OF  CASE; 

State  of  Louisicina  vs.  Glenn  Dauzat 

TRIAL  OOURT  AND  CASE  DOCKET  MO. 

Twelfth  Judicial  District  Ccxirt  of  Louisiana,  Criminal  Docket  #42,521 
Supreme  Court  of  Louisaina,  Docket  #67,002 
Supreme  Court  of  Louisiana,  Docket  #80-0-2999 

CITATION  OF  CASE  IF  E^EPORTED; 

380  So.  2d  1376  (1980) 
382  So.  2d  966  (1980) 

PARTY  I  REPRESEOTED  AND  NATURE  OF  My  PARTICIPATION  IN  THE  LITIGftnON; 

Defendant,  Glenn  Dauzat,  oo-oounsel 

DATE  OR  DATES  OF  TRIAL 

Numerous  appearances  including  Pre-Tried  euid  Post  Trial  Motions  and  an 
ajpearance  in  the  Loiiisiana  Suprate  Court.  Jury  trizd  conducted  June  25 
and  26,  1980. 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Jannes  N.  Lee,  Judge,  Twelfth  Judicial  District  Court,  Divison  ■". 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  OO-OOUNSEL; 

Donedd  R.  Wilson 
GAHARAN  &  WILSON 
P.  0.  Box  1356 
Jena,  Louisiana  71342 
(318)  992-2104 

NAME,  AIX)RESS,  AND  TELEPHONE  MO.  OF  OOUNSEL  PC»  EACH  CriHER  PARTY; 

Honorable  Eddie  Knoll,  District  Attorney 

P.  0.  Box  426 

Marksville,  Louisiana  71351 

(318)  253-6587 

Assistant  District  Attorney  Cliff  E.  Laborde,  III 

Laborde  &  Neuner 

P.  0.  Drawer  52828 

Lafayette,  Louisiana  70505-2828 

(318)  237-7000 


-15- 


298 


APPENDIX  I 

CASE  #8  -  PACE  2 


SUMMARY  OF  TOE  CASE: 


Defendant  was  charged  with  four  cxjunts  of  "Simple  Criminal  Damage  to 
Prc^rty."  The  prc^jerty  that  my  client  was  accused  of  damaging  consisted  of 
tractors,  combines,  welding  machines,  various  farm  equipment  attachments, 
amd  a  four-vrtieel  drive  pick-up.  The  damage  to  the  equipment,  which 
exceeded  $80,000.00,  vras  done  by  ramming  and  driving  certain  of  the 
equipment  into  other  equipment.  There  were  four  sepeirate  and  distinct 
piles  of  equipment  located  in  a  field,  thus  the  four  different  counts  for 
which  my  client  was  indicted  by  the  Grand  Jury.  Numerous  pre-trial  and 
post-trial  motions  were  filed  including  a  Writ  of  Certiorari,  which  was 
initially  granted  by  the  Louisiana  Supreme  Court,  but  was  later  dismissed. 
The  writ  was  based  on  the  exclusion  of  blacks  in  the  selection  of  the  Grand 
Jury. 

FINAL  DISPOSITION  OF  THE  CASE; 

The  trial  on  the  merits  was  conducted  on  June  25  and  26,  1980,  resulting  in 
a  jury  verdict  of  "Guilty"  on  two  of  the  four  counts  and  "Not  Guilty"  cxi 
the  other  two  counts.  Subsequent  to  defendant's  conviction,  he  v«s  charged 
with  attempting  to  jump  bail.  An  appeal  of  the  jury  verdict  »as  filed  with 
the  Louisicina  Supreme  Court.  Based  on  a  plea  bargain  with  the  District 
Attorney  on  the  attempt  to  jump  bail,  defendant  served  a  six  month  sentence 
concurrently  with  the  two  eighteen  month  oonsecutive  sentences  he  was 
ordered  to  serve  on  the  counts  for  which  he  had  been  convicted. 
Defendant's  appeal  was  dismissed. 


-16- 


299 


APPENDIX  I 
CASE  #9 

NAME  OF  CASE; 

Elaine  Dozier  Rednon  Vs.  Firenan's  Fund  Americein  Life  Insurance  Canpany 

TRIAL  COURT  AND  CASE  DOCKET  NO. 

Twelfth  Judicial  District  Court  of  Louisiana,  docket  #37,656 

CITATION  OF  CASE  IF  REPORTED; 

Not  applicable. 

PARTY  I  REPRESENTED  AND  NATURE  Cff  MSf  PARTICIPATION  IN  THE  LITIGATION; 

Plaintiff,  Elaine  Dozier  Redmon,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

August  29,  1978 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Earl  Edwards,  Judge,  Twelfth  Judicieil  District  Court 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  OO-OOONSEL; 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  COUNSEL  PC»  EACH  OTHER  PARTY; 

James  A.  Bolen,  Jr. 

BOLEN,  ERWIN,  JC«NSON  &  COLEMAN,  LTD. 

P.  0.  Box  906 

Alexandria,  Louisiana  71309-0906 

(318)  445-8236 

SUMMARY  OF  THE  CASE; 

Plaintiff  filed  suit  to  recover  benefits  due  under  a  life  insurance  policy 
as  a  result  of  the  death  of  plaintiff's  husband  by  gunshot.  The  issue 
before  the  court  was  whether  the  shooting  was  accidental  or  suicide.  The 
Ave  'elles  Parish  Coroner  and  the  Avoyelles  Parish  Sheriff's  D^artment  had 
ruled  plaintiff's  husband's  death  a  suicide  and  there  was  strong 
circamstantial  evidence  to  indicate  suicide,  but  no  suicide  note  was  found. 
Defendant  denied  the  claim  and  suit  was  filed  on  March  7,  1978. 


-17- 


300 


APPEM)IX  I 

CASE  #9  -  PAGE  2 


FINAL  DISPOSITION  OF  THE  CASE: 


The  matter  was  tried  on  July  24,  1978.  Written  Reasons  ware  hcinded  down  on 
August  29,  1978,  cind  judgment  signed  that  day.  Judgment  was  rendered  in 
favor  of  plaintiff  and  against  defendant  for  the  full  amount  of  the  policy 
of  insurance  or  the  sum  of  $15,000.00  with  legal  interest  frcm  date  of 
judicicil  danand  and  for  all  costs. 


-18- 


301 


APPENDIX  I 
CASE  #10 

NAME  OF  CASE; 

Phyllis  Prevot  vs.  Nelson  Williams,  Jr. 

TRIAL  OOUOT  AND  CASE  DOCKET  MO. 

Twelfth  Judicial  District  Court  of  Louisiana,  docket  #31,880 
Third  Circuit  Court  of  Appeal,  State  of  Louisiana,  docket  #4804 

CITATION  OF  CASE  IF  REPORTED; 

306  So. 2d  377  (La.  App.  3  Cir.  1975) 

PARTY  I  REPRESENTED  AND  NATURE  OF  MX   PARTICIPAnON  IN  THE  LITIGftTION; 

Plaintiff,  Phyllis  Prevot,  sole  counsel 

DATE  OR  DATES  OF  TRIAL 

Nuiterous  appearances  including  Pre-Trial  Motions,  Exceptions,  Post  Trial 
Motions  and  Appeal.  Tried,  conducted  March  15,  1974,  Appeal  eurgued 
December  2,  1974. 

NAME  OF  JUDGE  BEFORE  WHOM  CASE  WAS  TRIED; 

Honorable  Earl  Edwards,  Judge,  Twelfth  Judicicil  District  Court 

NAME,  ACPRESS,  AND  TELEPHONE  NO.  OF  OXPUNSEL; 

Not  applicable. 

NAME,  ADDRESS,  AND  TELEPHONE  NO.  OF  OOOtEEL  FOR  EACH  CTTHER  PARTY; 

Richard  V.  Bums 

P.  0.  Box  650 

Alexandria,  Louisiana  71309-0650 

(318)  442-4300 


-19- 


302 


APPENDIX  I 

CASE  #10,  PAGE  2 

SU^MARY  OF  THE  CASE; 

Plaintiff  filed  a  suit  for  legal  separation  on  July  3,  1972.  Defendant 
subsequently  filed  a  second  suit  for  divorce  based  on  the  grounds  of 
adultery.  On  January  9,  1973,  defendant  filed  an  answer  to  plaintiff's 
original  petition  for  separation  and  a  reconventional  demand  for  divorce 
based  on  the  grounds  of  adultery.  On  November  6,  1973,  trial  was  set  for 
December  11,  1973.  Plaintiff  was  represented  by  attorney  Maxwell  Bordelon 
at  the  time  of  the  institution  of  her  suit  for  separation.  On  November  20, 
1973,  Mr.  Bordelon  filed  a  Motion  withdrawing  as  counsel  of  record  for 
plaintiff.  No  notice  of  Mr.  Bordelon 's  withdrawal  as  counsel  of  record  was 
sent  to  plaintiff  because  Mr.  Bordelon  did  not  have  the  Houston  address 
where  plaintiff  was  residing.  On  December  11,  1973,  the  case  was  called 
for  trial.  Plaintiff  made  no  appearance  at  the  trial.  Defendant, 
represented  by  counsel,  presented  his  case  on  the  Reconventional  Darand  and 
the  Court  granted  a  divorce  to  defendant  on  the  grounds  of  adultery  and 
awarded  custody  of  the  parties'  three  minor  children  to  defendant,  subject 
to  reasonable  visitation  privileges  in  favor  of  plaintiff. 

In  December  1973,  plaintiff  who  was  residing  in  Houston,  Texas,  had 
consulted  a  Texas  attorney  concerning  the  possibility  of  having  her  case 
transferred  from  Louisiana  to  Texas  for  her  convenience.  On  Deca±)er  10, 
1973,  the  Texas  attorney  attempted  to  contact  Mr.  Bordelon  to  inquire  as  to 
the  status  of  plaintiff's  case  and  to  notify  him  that  plaintiff  was  then  in 
the  hospital  and  would  not  be  able  to  attend  the  trial  that  was  set  for  the 
next  day.  Mr.  Bordelon  could  not  be  reached  and  did  not  return  the  Texas 
attorney's  telephone  call  until  December  12,  1973.  On  December  14,  1973,  I 
was  contacted  by  plaintiff's  mother  and  retained  by  her  later  that  day.  I 
was  inforned  that  plaintiff  had  bseen  unable  to  attend  the  trial  on  December 
11,  1973  because  of  her  hospitalization  following  an  accident  in  Houston. 
Based  upon  the  infomation  I  received  from  plaintiff's  mother  and  fron  Mr. 
Bordelon,  an  application  for  a  new  trial  was  filed  on  December  14,  1973.  A 
hearing  was  held  on  the  application  on  December  28,  1973,  and  a  judgment 
granting  a  new  trial  was  signed  on  January  8,  1974. 

FINAL  DISPOSITION  OF  THE  CASE; 

The  trial  on  the  merits  was  held  on  March  15,  1974,  after  which  a  divorce 
was  granted  in  favor  of  defendant  based  on  the  adultery  of  plaintiff  and 
the  custody  of  the  three  minor  children  was  granted  to  plaintiff.  The 
judgitent  was  signed  on  March  22,  1974.  Defendant  filed  an  application  for 
a  new  trial  on  March  27,  1974  v*iich  was  heard  and  denied  on  ;^ril  2,  1974. 
Defendant  filed  an  appeal  with  the  Third  Circuit  Court  of  Appeal  for  the 
State  of  Louisiana.  The  appeal  was  argued  on  December  2,  1974.  The 
judgment  of  the  trial  court  was  affirmed  at  defendcint's  cost. 


-20- 


303 


II 

NAME  OF  CASE; 

Cliff  G.  Stinson,  et  al  vs.  Chevron  D.S.A. ,  Inc.,  et  clL 

COURT  AND  CASE  DOCKET  ^P. ; 

United  States  District  Court,  Western  District  of  Louisiana 
Lafayette-Opelousas  Division 
Civil  Action  #84-1910-0 

PERIOD  OF  REPRESENTATION; 

March  22,  1984  to  October  7,  1985 

PARTY  I  REPRESENTED  A^P  NATURE  OF  MY  PARnCIPATICfti  IN  THE  LITIGATION; 

Cliff  G.  Stinson,  Dorothy  May  Slocum  Stinson,  Gwendolyn  Stinson  Coutee, 
Steve  Stinson  eind  Rebecca  Stinson,  lead  counsel 

NAME,  ADDRESS  AND  TELEPHONE  NUMBER  OF  OO-OOONSEL; 

Carol  J.  Aymond,  Jr. 
235  Southwest  Main  Street 
Bunkie,  lA  71322 
(318)  346-6613 

NAME,  ADDRESS  AND  TELEPHONE  NUMBER  OF  OXINSEL  FOR  EACH  OTOER  MAJOR  PARTY; 

Michael  W.  Adley 

Juneau,  Judice,  Hill  &  Adley 

P.O.  Drawer  5769 

Lafayette,  LA  70505-1769 

(318)  235-2405 

Attorney  for  Dixie  Lynn  Field  Drilling  Ccnspany,  Inc. 

Alem  K.  Breaud 

Roy,  Ceurmouche,  Bivins,  Judice/  Haike  &  Breaud 

P.O.  Drawer  Z 

Lafayette,  LA  70502 

(318)  233-7430 

Attorney  for  Trams  it  Casualty  Insursmce  Conpany 

SUMMARY  OF  THE  CASE; 

This  seeuian's  case  eurose  eis  a  result  of  an  injury  that  occurred  while 
plaintiff.  Cliff  E.  Stinson,  was  being  transported  from  a  drilling  platform 
on  which  he  had  been  working  to  a  crew  boat.  Tte  case  was  settled,  in  two 
stages.  A  total  settlement  of  $865,000.00  was  reached  in  the  case, 
$665,000.00  being  paid  l^  Dixie  Lynn  Field  Drilling  Coipany,  Inc.  and 
$200,000.00  being  paid  by  Transit  Casualty  Insurance  (ixipany  with 
$50,000.00  being  repaid  to  Dixie  Lynn  Field  Drilling  pursuant  to  a  "Mary 
Carter"  Agreement. 

-1- 


304 

CHARLES  A    VANIK 

'i'ASHiscroN  DC  20004   * 


rXF^JsrA-. 


305 


February  4,  1994 


STATEMENT  OF  LADRACK  D.  BRAY 

OPPOSING  THE  CONFIRMATICHI 
OF  JUDITH  ROGERS 


I  am  %n:iting  to  express  my  opposition  to  the  confirmation  of  Judith 
Rogers  as  a  federal  appeals  judge. 

I  am  an  African  American  lawyer  practicing  in  the  District  of  Colum- 
bia.  The  position  I  take  against  the  confirmation  of  Judge  Rogers 
is  based  on  my  experience  and  knowledge  as  an  appellate  litigator 
in  the  District  of  Columbia  (D.C. )  Court  of  Appeals  and  on  my  obser- 
vations of  cases  regarding  other  independent  African  American  la%fyers 
litigated  in  the  Court  of  Appeals  zmd  the  Court's  treatment  of  those 
cases.   More  specifically,  my  position  evolves  from  the  facts  and 
circumstances  surrounding  three  cases  (two  civil  and  one  criminal)  I 
litigated  on  behalf  of  African  American  clients  in  the  D.C.  Court  of 
Appeals,  which  caused  me  to  become  intimately  involved  in  the  appel- 
late process  and  with  the  Court's  appellate  conduct  and  behavior.   Two 
of  the  cases  were  quite  complex  and  involved  significant  records  and 
expert  witnesses. 

I  believe  that  Judge  Rogers  is  unable  or  lack  the  desire  to  treat  poor 
African  American  litigants,  including  children,  represented  by  inde- 
pendent African  American  lawyers  in  a  fair,  just,  and  impartial  (or 
non-discriminatory)  manner. 

I  also  question  her  character  as  it  pertains  to  her  supervision  and 
knowledge  of  fraudulent  practices  by  D.C.  Court  of  Appeals  personnel, 
and  her  refusal  to  take  actions  to  discourage  or  condemn  such  conduct. 
Further,  I  question  her  character  as  it  pertains  to  her  supervision 
and  knowledge  of  conduct  or  practice  which  bespeaks  of  obstruction  of 
justice,  and  her  refusal  to  demonstrate  that  steps  are  being  taken  to 
prevent  such  conduct,  which  in  at  least  one  instance  could  mean  (and 
could  have  meant)  saving  lives  of  District  citizens. 

One  significant  example  of  the  discriminatory  conduct  of  the  D.C. 
Court  of  Appeals  under  the  leadership  of  Judge  Rogers  is  a  wrongful 
death-medical  malpractice  case  involving  eight  (8)  African  American 
children  as  plaintiffs  (including  one  child  who  was  bom  only  hours 
before  her  mother  was  killed--there  was  evidence  not  only  of  gross 
negligence,  but  also  of  brutality,  i.e.,  beating,  surrounding  the 
death- -and  the  mother  never  got  to  hold  the  child  before  she  was  kil- 
led) (Alj;Ce_^heffl^ld^_jet^_al^;;__v\_^Distrij^  un- 
published), whereby  the  D.C.  Court  of  Appeals  affirmed  a  directed 
verdict  (denied  a  jury  decision)  in  view  of  admissions  by  hospital 
doctors  that  the  mother's  death  was  at  least  negligently  caused  by 
an  overdose  of  morphine  administered  by  hospital  personnel,  and  other 
evidence;  there  also  was  a  suppression  of  evidence  of  multiple  deaths 
(probably  of  African  Americans)  on  the  Obstetrics  and  Gynecology  ward 


306 


of  the  D.C.  General  Hospital  linked  to  the  use  of  the  drug  Stadol 
on  patients,  which  likely  resulted  In  more  deaths,  and  evidence  that 
Stadol  was  a  new  drug  and  that  the  hospital  experinented  on  Onita 
Sheffield's  (the  deceased)  body  with  the  drug  without  her  consent. 

Onita  Sheffield  entered  D.C.  General  Hospital  in  good  health  and 
solely  for  the  purpose  of  giving  birth.   She  left  dead  with  brain 
daiaage.   He  argued  and  proved  that  the  trial  judge's  directed  verdict 
was  intentional,  deliberate,  and  invidious. 

In  Colbert  v.  Georgetown  Dniversity,  623  A, 2d  1244  (D.C.  1993),  Judge 
Rogers,  as  a  member  of  the  panel,  held  that  admissions  of  negligence 
by  a  doctor  to  a  family  member  is  prima  facie  evidence  of  medical 
malpractice  and  the  issue  must  be  submitted  to  the  jury.   In  Sheffield, 
there  was  admissions  by  a  doctor  to  family  members,  but  the  D.C. 
Court  of  Appeals  did  not  so  hold  (and  even  though  Judge  Rogers  was 
not  a  panel  member,  she  could  have,  sua  sponte,  called  for  a  hearing 
by  the  full  court  if  she  felt  an  injustice  had  been  done  and  if  she 
felt  that  the  holding  she  made  in  Colbert  should  have  been  made  in 
Sheffield) .   The  important  question  is  why  didn't  the  Court  of  Appeals 
so  hold?   In  the  Colbert  case, the  plaintiff's  attorney  was  white;  in 
the  Sheffield  case,  the  plaintiff's  attorney  was  black.  Was  race  a 
factor?   Based  on  my  experience  and  knowledge  in  and  of  the  D.C.  Court 
of  Appeals,  I  believe  it  was. 

I  continue  to  hope  and  believe,  on  behalf  of  Mrs.  Alice  Sheffield  and 
the  Sheffield  children,  and  myself,  that  justice  will  be  done,  and 
that  we  all  shall  receive  relief.   We  have  continued  to  keep  Onita 
Sheffield's  estate  open. 


Respectfully  submitted. 


lurack  D.  Bray,  Esq.   -J       \ 


Laurack  D.  Bray,  Esq 

P.S.  Enclosed  are  copies  of  two  civil  rights  complaints  filed  in  the 
D.C.  Federal  courts  on  behalf  of  the  Shef fields  and  Sceva  Kendall 
(  a  criminal  matter).   None  of  the  plaintiffs,  the  Shef fields  or 
Kendall,  were  granted  hearings  on  the  Complaints.   Therefore,  there 
were  no  determinations  as  to  the  merits  of  the  allegations  made.   The 
federal  judge  granted  the  judges  judicial  immunity  against  claims  of 
racial  discrimination,  so  the  judges  never  answered  the  charges  or 
allegations. 

The  question  for  the  Senate,  as  to  Judge  Rogers'  confirmation,  is: 
if  the  allegations  are  true,  and  I  contend  that  they  are,  should 
Judge  Rogers  be  confirmed? 


307 


UNITED  STATES  DISTRICT  COURT 
FOR  THE  DISTRICT  OF  COLWiBIA 


ALICE  SHEFFIELD 

Individually  and  as  Personal  Representative 
on  Behalf  of  the  Estate  of  Onita  Sheffield, 
Deceased  and  on  Behalf  of  Angel  Kay  Sheffield, 
Taraeca  Shawntee  Sheffield,  Onita  Sheffield, 
Star  Angel  Sheffield,  James  L.  Nicks,  Lafayette 
Sheffield,  Daniel  Thompson  Sheffield,  and  Tony 
Sheffield,  Children  of  the  Deceased  and  Real 
Parties  in  Interest 

Plaintiffs , 


Serve  at i   1118  Eight  Street,  N.E. 
Washington,  D.C.  20002 


HENRY  F.  GREENE 

Individually  and  as  Judge  of  the  Superior 
Court  of  the  District  of  Columbia 

Serve  *ti  District  of  Columbia  Courthouse 
500  Indiana  Avenue,  NW  Rm 
Washington,  D.C.  20001 

and 

JAKES  BELSON,  JOHN  FERRE::,  and  ANNICE  WAGNER 

Individually  and  as  Judges  of  the  District 
of  Columbia  Court  of  Appeals 

Serve  ati  District  of  Columbia  Courthouse 
District  of  Columbia  Court  of 
Appeals       6th  Floor 
500  Indiana  Avenue,  NW 
Washington,  D.C.  20001 


CA  No.qi-as^6 


308 


and 

DISTRICT  OF  COLWiBIA 

As  a  municipality  and  Party-Defendant  in  the 
underlining  or  primary  lawsuit  (in  the  Superior 
Court  'of  the  District  of  Columbia) 

SERVE  AT«  Kayor  Sharon  Pratt  Dixon 
District  Building 
1300  Pennsylvania  Avenue,  NW 
Washington,  D.C.  20001 


Defendants, 


COr-IPLAINT 

DECLARATORY  JUDGMENT  AND  OTHER  RELIEF 
AND  INJUNCTIVE  RELIEF 


Jurisdiction 
1.  Jurisdiction  of  this  Court  is  invoked  under  or  pursuant  to 
28  U.S.C.  sees  1331,  13^3,  2201  and  2202t  k2   U.S.C.  sees.  I98I , 
1983,  1985,  and  1988j  and  the  United  States  Constitution,  Fifth 
Amendment  and  Seventh  Amendment. 

Parties 
1.  The  parties  are  as  identified  in  the  above-captioned  title 
as  Plaintiffs  and  Defendants. 


2  - 


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Brief  Statement  of  the  Facts  > 

Plaintiffs  allege  that  a  brief  statement  of  the  pertinent 
facts  for  a  proper  understanding  of  this  case  is  as  follows « 

1.  This  case  involves  the  wrongful  death  of  a  32-year  old  poor, 
African-American  or  Black,  female,  inmate -pat  lent  who  died  on  the 
ward  of  J.C.  (District  of  Columbia)  Genera?.  Hospital  only  hours 
after  giving  birth  to  a  healthy  baby  girl. 

2.  As  a  result  of  the  deceased's  death  and  events  surrounding 
the  death,  Alice  Sheffield  (mother  of  the  deceased),  on  her  own 
behalf  and  on  behalf  of  the  deceased's  estate  and  the  deceased's 
children,  filed  suit  in  the  Superior  Court  of  the  District  of  Co- 
lumbia charging  the  District  of  Columbia  (hereinafter  "District") 
and  several  of  its  officers  and  employees  with  multiple  claims  or 
acts  of  legal  misconduct  involving  constitutional,  federal,  and 
local  law  and  charging  them  under  both  wrongful  death  and  survival 
act  statutes. 

3.  Before  trial,  the  District  defaulted:  (l)  by  filing  untimely 
Answers  to  Plaintiffs'  Complaint;  (2)  by  filing  untimely  Responses 
to  Plaintiffs'  discovery  requestsi  and  (3)  by  filing  incomplete 
and  evasive  discovery  responses  after  it  finally  responded  to 
Plaintiffs'  discovery  requests  (after  being  granted  four^i)  ex- 
tensions of  time  within  which  to  file  discovery  responses). 
Plaintiffs,  on  at  least  two  occasions,  moved  for  a  default  judg- 
ment against  the  District  (to  include  its  officers),  but  the  trial 
judge  denied  the  motions. 

k.   At  trial,  after  the  trial  judge  had  previously  disposed 
of  several  claims,  there  remained  16  Counts,  that  ist  Count  I 


310 


(wrongful  death-based  on  multiple  actions);  Count  II  (medical 
malpractice-based  on  an  overdose  morphine  injection);  Count  III 
(negligence-based  on  the  deceased's  fall  from  her  hospital  bed  to 
the  floor);  Count  IV  (assault  and  battery-based  on  physical  acts 
perpetrated  against  the  deceased,  including  hitting  and/or  kicking 
and  shackling  or  handcuffing  her  extremities  to  the  hospital  bed); 
Count  V  {kZ   U.S.C.  sec.  I983  claim- charging  deprivation  of  sub- 
stantive due  process,  e.g.,  liberty  and  others  related  to  the 
handcuffs);  Count  VII  (intentional  infliction  of  emotional  dis- 
tress-based on  the  correctional  officer  watching  the  deceased  suf- 
fer and  doing  nothing  to  help  her);  Count  IX  (negligence-by  hospi- 
tal personnel  regarding  handcuffs);  Count  XI  (negligent  training- 
D.C.  Department  of  Corrections-correction  officer);  Count  XII 
(negligent  training-D.C .  General  Hospital-hospital  personnel); 
Count  XIII  (medical  malpractice-negligent  administration  of  the 
drug  Stadol  and  battery  for  administering  it  without  the  deceased's 
consent);  Count  XIV  (intentional  spoiliation  of  evidence- the  de- 
ceased's medical  records  directed  towards  the  overdose  morphine 
injection);  Count  XV  (cruel  and  unusual  punishment-based  on  a 
failure,  on  the  part  of  the  correction  officer,  to  respond  to  the 
deceased's  serious  medical  need);  Count  XVI  (fraudulent  conceal- 
ment-based on  the  Defendants'  concealment  of  the  deceased's  medi- 
cal records);  Count  XVIII  (U2  U.S.C.  sec.  1985-conspiracy  to  cover- 
up  evidence);  Count  XXI  (deprivation  of  liberty  interest  in  the 
family  unit  based  on  the  deceased's  death);  and  Count  XXII  (loss  of 
life-pursuant  to  k2   U.S.C.  I9B3-  a  survival  claim  based  on  federal 
law).  Except  when  otherwise  precluded  by  the  trial  judge,  Plaintiffs 


-  U 


311 


produced  substantial  evidence  (for  several  Counts,  more  than 
substantial  evidence)  to  support  each  Count. 

5.  Plaintiffs'  (to  include  the  decedent)  entire  litigation 
team  (with  the  exception  of  two  individuals)  consisted  of  African- 
Americans,  that  is,  the  decedent,  the  Plaintiffs  (deceased's 
mother  and  children),  Plaintiff's  counsel.  Plaintiff's  expert 
witnesses  and  their  lay  witnesses.  Plaintiffs'  counsel  was (is) 

a  sole  practitioner  and  litigated  the  entire  case  himself  (i.e., 
not  connected  with  a  white  law  firm  or  another  (white) lawyer ) . 
Plaintiffs  offered  the  testimony  of  six  lay  witnesses  (and  one 
other  witness's  testimony  was  not  admitted--albeit  erroneously, 
Plaintiffs  contend)  and  five  expert  witnesses  (one  out-of-state 
medical/health  expert  who  came  from  California  and  testified  as 
to  consent  and  informed  consent) (and  including  three  adverse  ex- 
pert witnesses,  including  the  District's  medical  examiner). 

6.  After  Plaintiff's  case-in-chief,  the  trial  judge,  sua 
sponte  (or  voluntarily),  moved  for  a  directed  verdict  (as  the 
District  was  prepared  to  put  on  its  case-in-chief  and  did  not 
make  a  formal  motion  or  request  for  a  directed  verdict)  and  en- 
tertained Plaintiffs'  opposition  to  the  motion  as  to  each  remain- 
ing Count. 

7.  After  completion  of  Plaintiffs'  oral  opposition  to  the  direct- 
ed verdict,  the  trial  judge  directed  a  verdict  as  to  all  remain- 
ing Counts. at  trial.   Thereafter,  Plaintiffs  noted  a  timely  appeal. 

8.  At  several  points  throughout  the  above-mentioned  litigation, 
Plaintiffs,  through  counsel,  charged  the  trial  judge  with  bias, 
prejudice,  and  invidious  discrimination,  based  on  his  conduct  dur- 
ing pre-trial  and  trial,  and  indeed,  at  one  point  had  moved  for  his 


312 


recusal  (through  a  motion,  and,  subsequently--after  the  motion 
was  denied,  through  a  Writ  of  Mandamus)  based  on  his  three-year 
extra-judicial  relationship  with  defense  counsel  and  on  his 
suggesting  motions  for  defense  counsel  to  file  (and  his,  there- 
after, granting  the  sairae  ss  id  motions). 

Count  I . 
k2   U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFFS'  SEVENTH 

A^:Ei€)r.:ENT  constitutional  right  to  a  trial  by  jury. 

1.  Plaintiffs  allege  that  Defendant  Judge  Henry  F.  Greene  of 
the  Superior  Court  of  the  District  of  Columbia,  under  color  of 
District  of  Columbia  law  (as  a  judicial  officer  of  the  District 
of  Columbia  Superior  Court),  deprived  Plaintiffs  herein  of  their 
Seventh  Amendment  constitutional  right  to  a  trial  by  jury  by  im- 
properly and  with  ill  will  directing  a  verdict  in  favor  of  Defen- 
dant District  of  Columbia  in  the  case  of  Alice  Sheffield  v.  Dis- 
trict of  Columbia,  et.  al.,  CA  NO.  9799-37-  Specific  evidence  of 
the  malice  is:  (1)  Judge  Greene  himself  initiated  and  made  the 
motion  for  a  directed  verdict  and  not  the  District  of  Columbia 
(hereinafter  "District");  the  District,  through  its  counsel,  never 
made  a  motion  for  a  directed  verdict,  was  prepared  to  put  on  its 
case-in-chief,  and  placed  the  directed  verdict  decision  in  Judge 
Greene's  hands;  (2)  Judge  Greene  developed  animosity  and  hostili- 
ty towards  Plaintiffs  and  their  counsel  (particularly  their  coun- 
sel) for  not  retaining  an  independent  medical  doctor  (with  Plain- 
tiffs choosing  instead  to  rely  on  and/or  utilize  the  District's 
medical  doctor,  i.e.,  the  medical  examiner,  pursuant  to  District 
of  Columbia  case  law--because  the  Plaintiffs  found  and/or  deter- 
mined that  an  independent  doctor  was  not  necessary  under   the 


313 


circumstances  of  the  particular  case  in  question).   At  various 
times  during  the  litigation  Judge  Greene  continued  to  comment  that 
things  would  have  been  a  lot  easier  if  Plaintiff  had  brought  in 
an  ind'ependent  physician.   Further,  he  forecast  that  Plaintiffs 
would  not  prevail  on  their  wrongful  death  and  medical  malpractice 
claims  before  Plaintif'^'s  had  presented  most  of  their  evidence 
supporting  those  claims  (i.e.,  a  foregone  conclusion);  (3)  Judge 
Greene  made  an  intentional  false  statement  on  the  record  (stating 
that  he  was  not  aware  of  a  controlling  case--or,  more  specifically, 
that  it  was  the  first  time  that  he  had  seen  the  case--when  in 
actuality  he  had  seen  and  referred  to  the  case  in  another,  and 
concurrent,  medical  malpractice  trial  (approximately  one  month 
prior  thereto)),  and  assumed  a  false  and  fabricated  argument  or 
position  in  an  attempt  to  preclude  the  Plaintiffs  from  utilizing 
the  District's  medical  expert  at  trial.   It  was  only  because 
Plaintiff's  counsel  came  to  trial  prepared  with  a  memorandum  of 
law  that  Defendant  Greene  eventually  conceded  and  Plaintiffs  were 
allowed  to  use  the  expert.   (4)  Defendant  Greene  himself  concluded 
on  the  record  that  an  overdose  of  morphine  was  a  cause  of  death, 
and  that  the  only  remaining  issue  related  to  the  morphine  cause  of 
death  was  how  the  deceased  received  the  morphine  injection  (i.e., 
who  gave  her  the  morphine  injection),  which  was  clearly  a  jury 
question  (assuming,  for  the  sake  of  argument,  that  at  that  point 
it  had  not  been  proven  who  gave  the  deceased  the  morphine--Plain- 
tiffs  believe  it  had  been  (hospital  personnel).  (5)  In  at  least 
one  other  wrongful  death  case  involving  a  poor,  Black  family 
(litigated  at  or  about  the  same  time  as  the  herein  case  in  ques- 
tion— Sheffield  v.  P.O. ) ,  Defendant  Greene  denied  the  family  a 


314 


trial  by  jury  (by  dismissing  the  case  with  prejudice  before  trial, 
based  on  a  discovery  problem). 

Evidence  of  a  planned  directed  verdict  by  Judge  Greene  is 
that  he  requested  and  received  a  U.S.  Karshal  to  be  present  in 
the  courtroom  during  this  civil  medical  malpractice/wrongful  death 
proceeding  (which  is  an  extraordinary  move),  anticipating  that  the 
Plaintiffs  and/or  their  counsel  would  react  with  outrage,  or  other- 
wise inappropriately  (or,  rather,  appropriately  under  the  circum- 
stances of  the  case)  to  his  directed  verdict,  and  believing  that 
he  would  need  someone,  perhaps,  to  control  their  behavior.' 

2.  Plaintiffs  allege  further  that  Defendant  Greene's  reasons 
given  for  the  directed  verdict  in  favor  of  the  District  in  the 
Sheffield  case  were  either  erroneous  or  immaterial  based  on  District 
of  Columbia  (or  other)  law,  the  facts,  and  the  evidence. 

3.  Plaintiffs  allege  that  they  presented  sufficient  evidence 
for  each  Count  of  their  Complaint  and/or  Amended  or  Second  Amended 
Complaint  to  support  a  verdict  in  their  favor  (or,  alternatively, 
toovercome  a  directed  verdict  for  the  Defendants);  indeed,  for 
several  Counts  Plaintiffs  presented  overwhelming  evidence  (in- 
cluding circumstantial  evidence  and  reasonable  inferences),  suf- 
ficient to  not  only  present  a  prima  facie  case,  but  also  to  prove 
their  case  by  a  preponderance  of  the  evidence. 

For  exeimple,  as  to  Count  II  of  the  Second  Amended  Complaint 
(hereinafter  references  to  "Counts"  will  refer  to  the  Second  Amended 
Complaint) (charging  the  District  with  negligently  killing  or  other- 
wise causing  the  death  of  the  deceased  by  injecting  her  with  an 
overdose  of  morphine).  Plaintiffs  produced  at  least  the  following 
admitted  evidence  at  triali  (1)  an  admission  by  the  District's  own 


315 


medical  doctor  (in  the  medical  examiner's  office)  that  D.C.  Gene- 
ral Hospital  personnel  had  given  the  deceased  the  overdose  of  mor- 
phine and  that  the  high  level  of  morphine  caused  .the  deceased's 
death,'  (2)  the  District's  own  autopsy  report  (produced  by  its 
medical  exeiminer  and  toxicologist)  showing  a  high  level  of  mor- 
phine in  the  deceased's  system  at  the  ti'^;e  of  her  death  and  show- 
ing that  the  deceased  suffered  brain  damage  before  she  died,  (3) 
testimony  of  the  District's  medical  exajniner  stating  that  the 
deceased  died,  at  least,  of  an  overdose  of  morphine,  and  that 
the  hospital  could  have  caused  her  death  (she  testified  as  to 
standard  of  care,  i.e.,  normal  dosej  breach  of  the  standard,  i.e., 
too  high  a  level?  and  causation,  i.e.,  the  high  level  of  morphine 
caused  the  deceased  death--at  least  one  cause),  (4)  testimony  of 
two  witnesses  to  the  afirementioned  medical  doctor's  admission 
of  the  District's  hospital  personnel's  responsibility  for  the 
deceased's  death  due  to  the  overdose  of  morphine,  (5)  testimony  of 
another  witness  who  witnessed  another  District  doctor  state  (and 
admit)  that,  "that  would  not  have  happened  (the  deceased's  death) 
if  you  hadn't  given  her  (the  deceased)  the  wrong  medicine  (mor- 
phine) "--this  witness  was  hospitalized  on  the  same  ward  and  at  or 
about  the  same  time  as  the  deceased  at  the  time  of  the  deceased's 
death;  (6)  evidence  that  the  deceased  was  in  good  health  after 
giving  birth  (and  the  baby  was — and  is — in  good  health  as  well — 
indicating  that  the  overdose  of  morphine  was  given  to  the  deceased 
after  she  gave  birth);  (?)  evidence  that  the  deceased  was  under 
constant  surveillance  at  all  times  (by  a  correction  officer)  while 
on  the  ward  of  D.C.  General  Hospital;  (8)  evidence  that  the  hospi- 
tal personnel  were  required  to  detoxify  the  deceased  after  she  en- 
tered the  hospital  (which  would  have  detected  any  contraindicated 


316 


drugs  in  her  system,  i.e.,  morphine),  but  the  hospital  did  not 
detoxify  her.  (9)  Evidence  that  District  hospital  personnel  in- 
tentionally destroyed  crucial  medical  records  that  would  have  pro- 
vided direct  evidence  that  the  hospital  personnel  injected  -the  de- 
ceased with  an  overdose  of  morphine  (i.e.,  an  inference  could  te 
drawn  that  the  destroyed  medical  records  containe''  specific  in- 
formation showing  that  an  injection  of  morphine  was  prescribed  or 
ordered  and  showing  who  injected  the  deceased  with  the  morphine )j 
(10)  evidence  that  after  the  hospital  personnel  discovered  or 
realized  that  the  deceased  had  been  given  an  overdose  of  morphine, 
they  failed  to  give  the  deceased  an  antidote  that  could  have  pre- 
vented her  death;  and  other  testimonial  and  dencnstrative  evidence 
that  went  to  the  morphine  injection  that  Defendant  Greene  did  not 
admit,  but  which  Plaintiffs  believe  should  have  been  admitted. 

Another  example  is  Count  XIII  (the  battery  medical  malprac- 
tice Count  related  to  the  injection  of  the  drug  "Stadol" ) .   Plain- 
tiff produced  at  least  the  following  admitted  evidence i  (1)  hospi- 
tal medical  record  (Phyacian's  Order  Sheet)  showing  that  the  drug 
Stadol  was  ordered  for  the  deceased  by  a  District  doctor;  (2) 
medical  record  (Nurses'  Progress  Notes)  showing  that  the  drug 
Stadol  was  administered  to  the  deceased;  (3)  testimony  of  Plain- 
tiffs' qualified  expert  on  consent  and  informed  consent  (^;s. 
Dianne  Jackson),  based  on  her  review  of  the  deceased's  medical 
records  and  her  expertise  on  consent,  that  the  deceased  did  not 
consent  to  the  administration  of  the  drug  Stadol;  (k)   evidence  that 
morphine  and  Stadol  have  similar  qualities  and  effects  and  are 
contraindicated  for  each  other  (or  for  use  with  each  other)  and 
that  Stadol  is  8  times  stronger  than  morphine;  (5)  evidence  that 
both  Stadol  and  morphine  were  in  the  deceased's  body  at  the  same 


317 


time  through  action  of  the  District's  employees;  (6)  direct  evi- 
dence that  an  overdose  morphine  injection  was  a  cause  of  death  and 
powerful  circumstantial  evidence  that  Stadol  was  a  cause  of  death; 
(7)  evidence  that  Stadol  was  explicitly  not  recommended  for  use 
with  or  for  the  deceased (PDR  -  "Physician's  Desk  Reference");  (8) 
the  deceased  suffered  the  type  of  risks  that  the  use  of  Sfdol 
could  cause  (i.e.,  respiratory  depression);  (9)  evidence  (PDR) 
that  at  the  time  of  the  Stadol  injection  into  the  deceased,  the 
manufacturer  itself  did  not  know  its  exact  mechanism  (i.e.,  how 
it  acted  on  the  body  or  its  system--al though  the  manufacturer  did 
know  "some"  of  its  effects);  (10)  evidence  (testimony  by  the 
District's  medical  examiner--Dr.  Silvia  Comparini)  that  there  had 
already  been  several  Stadol-related  or  caused  deaths  on  the  ward 
of  D.C.  General  Hospital  at  the  time  of  the  herein  deceased's 
death;  (11)  evidence  (admission  by  the  District's  medical  doctor-- 
Dr.  Philip  Santiago)  that  the  District  was  experimenting  on  the 
herein  deceased  to  determine  what  effect  the  Stadol  would  have  on 
her  body  (because  such  said  effects  were  widely  unknown);  (12) 
evidence  that  the  deceased  suffered  brain  damage  before  her  death 
due  to  a  lack  of  oxygen  (which  was  caused  by  the  morphine  and  Sta- 
dol injections);  and  (13)  evidence  that  D.C.  General  Hospital  was 
required  to  detoxify  the  deceased  after  she  entered  the  hospital  to 
ascertain  if  she  had  any  contraindicated  drugs  (e.§.  ,  morphine)  in 
her  body  when  she  entered,  but  that  the  hospital  failed  to  so 
detoxify  her. 

A  final  example  is  Count  XV,  the  Eight  Amendment  cruel  and 
unusual  punishment  Count.   As  to  this  Count,  Plaintiffs  presented 
at  least  the  following  admitted  evidence:  (1)  medical  records,  et. 


318 


seq . ,  showing  that  the  deceased  had  recently  given  birth  to  a 
baby  girl  and  was  in  post-partum  recovery  when  the  acts  or  con- 
duct to  follow  was  established;  (la)  admission  by  District's 
police'  officer  that  the  deceased  was  diagnosed  as  dying  from 
hemorrhaging — indicating  that  there  were  blood  and  blood  clots 
from  the  deceased  present  (i.e.,  deceased  wallowing  in  blood)? 
(lb)  admission  by  a  District  doctor  (Dr.  Conrad  Duncan)  that  the 
deceased  was  lying  on  the  floor  (in  the  hospital  room)  with  her 
single  extremity  (left  leg)  shackled  to  the  hospital  bed  when  he 
entered  the  hospital  room  after  being  summoned  by  a  nurse  to  res- 
pond to  the  deceased's  suffering,  and  that  at  the  same  time,  the 
female  correction  officer  was  present  and  sitting  on  a  chair 
watching  and  doing  nothing  to  assist  the  deceased;  and  that  hos- 
pital staff  had  to  order  the  correction  officer  to  remove  the 
shackles  from  the  deceased's  leg;  (2)  admission  (medical  record) 
showing  that  the  District's  nurse  observed  the  deceased  complain- 
ing of  shortness  of  breath  and  requesting  medicine  for  paint  ob- 
served that  the  deceased  left  leg  was  handcuffed  to  the  hospital 
bed  while  deceased  was  sitting  on  the  bed  and  later  that  the  de- 
ceased was  sitting  on  the  "floor"  (she  had  apparently  fallen)  and 
her  single  extremity  "remain(ed)  cuffed" i  observed  that  the 
guard  (correction  officer)  was  present;  observed  that  the  deceased 
was  perspiring  "profusely"  and  that  the  deceased  was  exhibiting 
white  mucous  foam  from  her  mouth  and  thrashing  about  on  the  bed 
and  on  the  floor;  and  observed  a  Code  Blue  being  called;  (3)  ad- 
mission (medical  record)  by  a  different  nurse  showing  decedent  was 
perspiring  profusely  and  complaining  of  shortness  of  breath;  (U) 
a  D.C.  correction  officer's  log  sheet  showing  that  deceased  was 
shackled  and  that  she  was  vomiting;  (5)  testimony  by  Plaintiffs' 


319 


qualified  expert  (Ms.  Dianne  Jackson)  that  the  use  of  metal 
handcuffs  on  inmate-patients  is  inhumane  treatment;  (6)  testimony 
by  the  District's  own  penological  expert  (Mr.  Hallem  Williams) 
(Plaintiffs'  adverse  expert  witness)  that  a  correction  officer  is 
required  to  take  steps  to  seek  medical  assistance  for  an  inmate  in 
emergency  situations;  (7)  testimony  by  the  District's  own  hospital 
administrator  (Kr.  John  Dandridge,  Jr. ) (Plaintiffs'  adverse  ex- 
pert witness)  that  the  hospital  (D.C.  General  Hospital)  never  uses 
metal  restraints  on  patients  as  a  means  of  proper  patient  care; 
(8)  evidence  (medical  records  and  log  sheet)  that  the  correction 
officer  observed  the  deceased  suffer  and  never  sought  medical  help 
or  assistance  for  her  or  attempted  to  help  the  deceased  herself 
for  at  least  1^  hours;  (9)  evidence  (testimony  of  Plaintiffs' 
nurse-lawyer  expert — Ms.  Pamela  Copeland)  that  the  deceased  was 
suffering  from  "severe  respiratory  distress" (during  the  time  the 
correction  officer  was  sitting  and  watching  her  suffer) j 
(10)   some    evidence  that  the  deceased  was  battered  physically 
by  the  correction  officer;  (11)  evidence  (testimony)  that  Dis- 
trict personnel  (medical  examiner's  office)  would  not  allow  the 
Sheffield  family  to  view  the  body  before  the  autopsy--not  even 
for  purposes  of  identifying  the  body--the  personnel  simply  showed 
the  family  two  polaroid-type  pictures  of  the  head  of  the  deceased 
(where  the  family  might  have  discovered  abuse  or  dajnage  to  the 
body);  and  (12)  evidence  (autposy  report)  that  the  deceased  suf- 
fered brain  damage  before  her  death  and  died  as  a  result  of  a  lack 
of  oxygen. 

k.    Plaintiffs  allege  that  they  produced  five  (5)  expert  wit- 
nesses whom  all  produced  significant  testimony  that  supported 
Plaintiffs'  case  and„ imuQsed  liability  on  Defendants.   Included 


320 


among  the  experts  were  a  medical  doctor,  a  penologist,  a  nurse- 
lawyer,  and  a  health  consultant.   The  medical  doctor  (Dr.  Compa- 
rini),  at  least,  testified  that  the  standard  of  care  for  a  mor- 
phine injection  was  a  "regular"  dose,  that  as  to  the  herein  de- 
ceased the  standard  of  care  was  breached  because  the  level  of 
morphine  found  in  the  deceased's  blood  was  "too  high",  and  that 
the  overdose  of  morphine,  at  least,  caused  the  deceased's  death. 
The  penologist  (Mr.  Williams)  testified  that  the  standard  of  care 
for  action  by  a  correction  officer  in  an  emergency  situation  on 
the  hospital  ward  while  guarding  an  inmate-patient  was  to  seek 
medical  assistance  for  an  inmate-patient,  and  it  was  shown  that 
the  standard  of  care  was  breached  by  a  demonstration  that  the  cor- 
rection officer  took  no  steps  to  aid  the  deceased  herself  or  to 
seek  aid,  and  that  nonaction  necessarily  contributed  to  and  caused 
the  deceased's  death  due  to  a  lack  of  oxygen  (effects  of  the  mor- 
phine and  Stadol),  and  it  also  aggravated  her  existing  condition 
at  the  time.   The  nurse-lawyer  (Ks.  Copeland)  testified  that  the 
nursing  personnel  violated  the  standard  of  care  for  responding  to 
the  deceased's  severe  respiratory  distress  by  not  providing  proper 
care  for  the  deceased  during  her  state  of  distress  (such  as  by  not 
taking  vital  signs  timely,  by  not  timely  securing  a  more  senior 
physician,  and  by  not  recognizing  the  symptoms  of  the  deceased's 
distressed  state).   The  health/medical  consultant  (Ms.  Jackson) 
testified  to  the  standard  of  care  regarding  obtaining  consent 
(and  informed  consent)  from  a  patient  for  the  administration  of 
certain  drugs.   Ms.  Jackson  testified  that  the  standard  of  care 
of  consent  to  the  administration  of  the  drug  Stadol  was  "specific" 
consent  by  the  deceased  for  the  administration  of  the  drug,  that 
D.C.  General's  personnel  violated  the  standard  of  care  by  not  ob- 


321 


taining  such  "specific"  consent  (and  therefore  no  consent). 
Plaintiffs  (alleging  battery  medical  malpractice  as  to  the  Stadol) 
proved,  in  addition  to  the  lack  of  consent,  that  the  deceased  was 
given  -a  2mg  intramuscular  dose  of  the'  drug  Stadol  (through  medical 
records,  i.e.,  physician's  order  sheet,  nurses'  progress  notes), 
that  both  Stadol  and  morphine  were  in  the  deceased's  body  at  the 
same  time,  that  Stadol  and  morphine  have  the  same  qualities  and 
effects,  that  Stadol  is  8  times  stronger  than  morphine,  and  that 
morphine  definitely  was  a  cause  of  death,  and  that,  therefore, 
Stadol  had  to,  at  least,  contribute  to  the  deceased's  death  (es- 
pecially when  the  two  drugs  are  contraindicated  for  use  with  each 
other) . 

5-  Plaintiffs  allege  further  that  Defendant  Greene  "acted  out 
of  personal  motivation  and.  .  .  used  his  judicial  office  as  an 
offensive  weapon  to  vindicate  personal  objectives,"  that  is,  to 
deny  Plaintiffs  (particularly  because  they  are  poor  and  black)  a 
money  judgment  and  to  deny  Plaintiffs'  black  counsel  (particularly 
because  he  was  a  sole  practitioner  and  black)  attorney  fees. 
Plaintiffs  allege  that  in  least  one  other  wrongful  death  case  in- 
volving poor  African-American  children  (or  the  death  of  such  said 
children).  Defendant  Greene  has  alleged,  through  adopting  the 
government's  position,  that  the  only  person  interested  in  pursuing 
the  wrongful  death  claims  was  the  attorney  in  the  case  (insinua- 
ting that  no  one  else  cares  about  the  death  of  the  children  or 
about  the  liability  for  their  death--even  though  the  father, 
albeit  incarcerated,  continued  to  express  an  interest  in  the 
children's  deaths  and  an  interest  in  determining  liability  for 
their  deaths)  and  insinuating  that  his  only  interest  in  the  case 
was  attorney  fees. 


322 


Evidence  that  Judge  Greene  adhered  to  the  same  or  a  similar 
philosophy  in  the  underlining  herein  case  of  Sheffield  v.  Dis- 
trict of  Columbia,  et.  al..  CA  NO.  9799-97  (hereinafter  "Shef- 
field") is  that  at  one  point  before  delivering  the  directed  ver- 
dict, Judge  Greene  stated  to  counsel,  "the  bottom  line  Mr.  Bray, 
is  that  you  are  not  going  to  get  to  the  jury  on  any  of  your  Counts." 
The  Counts  or  claims  were  not  Kr.  Bray's  (or  counsel's),  rather 
the  claims  were  the  Plaintiffs,  yet  Defendant  Greene  directed  his 
statement  to  counsel  as  if  counsel  was  bringing  the  suit  (to  col- 
lect attorney  fees);  and  Defendant  Greene  was  letting  counsel  know 
that  he  ( counsel )was  not  going  to  collect  any  fees,  while  at  the 
same  time  totally  disregarding  the  rights  of  the  real  parties  (Krs. 
Sheffield  and  the  children).   Again,  the  same  philosophy  was  ad- 
hered to  here  by  Defendant  Greene  as  was  in  the  aforementioned  case, 
that  is,  only  Plaintiff's  counsel  was  interested  in  pursuing  the 
litigation  and  not  the  family  (even  though  at  one  point  in  the 
trial,  the  court  had  to  call  a  recess  because  Mrs.  Sheffield  broke 
down  in  tears  over  certain  testimony  concerning  her  deceased  daugh- 
ter). 

6.  Plaintiffs'  allege  further  that  the  District  itself  did  not 
move  for  a  directed  verdict  in  the  trial  court,  rather.  Defendant 
Greene,  sua  sponte,  moved  for  and  directed  the  verdict.  Again, 
the  District's  counsel  was  prepared  to  and  intended  to  put  on  his 
case-in-chief. 

7.  Plaintiffs  allege  further  that  they  were  deprived  of  a  trial 
by  jury  because  the  jury  (in  Sheffield)  did  not  make  the  decision 
(as  to  factual  determinations,  rights,  liabilities,  damages,  or 
other) . 

7a.  Plaintiffs  allege  that  they  have  been  and  continue  to 


323 


be  injured  by  the  denial  of  a  trial  by  jury  as  guaranteed  them 
by  the  Seventh  Amendment  of  the  United  States  Constitution,  and 
as  long  as  the  right  is  denied,  they  will  continue  to  suffer  in- 
jury. ' 

8.  Plaintiffs  allege  that  Defendants  Judges  James  Belson, 
John  Ferren,  and  Annice  Wagner,  under  color  of  District  of  Colum- 
bia law  (as  judicial  officers  of  the  District  of  Columbia  Court 
of  Appeals),  by  knowingly  and  willingly  affirming  Defendant 
Greene's  improper  directed  verdict,  in  full  view  of  the  over- 
whelming evidence  supporting  Plaintiffs'  case  and  the  remaining 
points  of  reversible  error  (e.g.,  the  trial  court  relying  on  an 
erroneous  legal  standard  to  support  its  decision),  deprived  the 
Plaintiffs-appellants  of  their  constitutional  right  to  a  trial 
by  jury. 

Count  II 

k2   U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFFS'  STATUTORY 
RIGHT  TO  EQUAL  TREATI^'JiNT  (42  U.S.C.  SEC.  I98I) . 

1.  Plaintiffs  herein  incorporate  by  reference  all  allegations 
set  forth  in  Count  I  as  if  said  allegations  were  set  forth  herein. 

2.  Plaintiffs  allege  further  that  Defendant  Greene  acted  under 
color  of  District  of  Columbia  law  in  depriving  them  of  their 
Federal  statutory  right,  pursuant  to  42  U.S.C.  sec.  I98I,  of  equal 
treatment  (to  that  of  white  people)  in  obtaining  and  contracting 
for  a  jury  trial  and  giving  evidence  pursuant  thereto. 

2a.  Plaintiffs  allege  that  they  are  African-American  (or 
black)  and  Defendant  Greene  is  white. 

2b.  Plaintiffs  allege  that  the  evidence  that  they  submitted 
was  fully  qualified  to  be  submitted  to  the  jury  for  consideration 


324 


and/or  decision. 

2c.  Plaintiffs  allege  that  Defendant  Greene  rejected  their 
evidence  (and  did  not  allow  it  to  be  submitted  to  the  jury) (i.e., 
directed  verdict). 

2d.  Plaintiffs  allege  that  even  if  Defendant  Greene's,  reasons 
for  rejecting  Plaintiffs*  evidence  are  deemed  "articulable,  legi- 
timate reasons",  they  were/are  pretexual  (for  a  discriminatory 
purpose ) . 

3.  Plaintiffs  allege  further  that  they  attempted  to  contract 
with  the  Superior  Court  of  the  District  of  Columbia  for  a  jury 
trial,  and  that  part  of  their  attempt  to  so  contract  was  payment 
of  a  specific  consideration  (sum  of  money)  for  a  jury  trial  (which 
is  not  required  for  a  non-jury  trial) (with  prepayment  being  waived). 

4.  Plaintiffs  allege  that  Defendant  Greene,  as  an  officer-agent 
of  the  Superior  Court  of  the  District  of  Columbia,  refused  to 

submit  their  evidence  to  the  jury  for  consideration  and/or  deci- 
sion, and,  therefore,  refused  them  a  jury  verdict  (i.e.,  a  jury 
trial)  because  they  were  African-American  and  poor. 

Count  III 

k2   U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFFS'  FIFTH 
AMENDMENT  CONSTITUTIONAL  RIGHT  TO  DUE  PROCESS  AND  EQUAL  PROTECTION 
OF  THE  LAW. 

1.  Plaintiffs  incorporate  by  referaxe  all  allegations  asserted 
in  Counts  I  and  II  as  though  they  were  herein  asserted . 

2.  Plaintiffs  further  allege  that  Defendant  Greene,  acting 
under  District  of  Columbia  law,  willfully  deprived  them  of  their 
Fifth  Amendment  constitutional  rights  to  due  process  and  equal  pro- 
tection of  the  law. 


325 


3.  Plaintiffs  allege  that  Defendant  Greene  deprived  them  of 
due  process  of  law  by,  at  least,  depriving  them  of  a  fair  and 
impartial  trial  by:  (1)  forcing  Plaintiffs'  counsel  (by  ordering 
him  after  he  initially  refused  to  do  so)  to  reveal  his  litigation 
strategy  for  obtaining  certain  evidentiary  matter  from  certain 
witnesses  (i.e.,  how  counsel  would  prove  his  case  at  trial)  to 
he  and  defense  counsel,  and  thereafter,  using  this  information  to 
prepare  District  witnesses  for  cross-examination  (for  example, 
discovering  that  Plaintiffs  would  rely  on  the  Physician  Desk 
Reference  (PDR)  for  some  evidence  and  would  rely  on  the  medical 
examiner  as  their  expert  and  that  the  medical  examiner  would  be 
required  to  rely  on  the  PDR  in  order  for  the  evidence  to  be  ad- 
mitted, thereafter,  preparing  the  medical  examiner  (Dr.  Comparini ) 
to  testify  at  trial  that  she  doesn't  rely  on  the  PDR  (albeit  the 
PDR  is  universally  relied  upon  by  physicians  as  the  primary  ref- 
feral  source  for  information  on  drugs  and/or  medications);  (2) 
unconstitutionally  supressing  evidence  by  protecting  District 
witnesses  from  from  answering  questions  at  trial  that  would  have 
provided  significant  evidence  regarding  liability  and  negligence 
against  the  District  (e.g.,  prohibiting  counsel  from  questioning 
the  medical  examiner  about  her  investigation  of  the  death  of  the 
deceased);  (3)  falsely  stating  that  he  was  not  aware  of  a  leading 
and  controlling  D.C.  case,  in  order  to  prevent  Plaintiffs  from 
using  the  medical  exajniner  as  an  adverse  medical  doctor  (in  or- 
der to  help  defeat  Plaintiffs'  case)(NOTE«  Plaintiffs'  counsel 
came  to  trial  prepared  with  a  memorandum  of  law  on  the  subject, 
consequently,  the  Plaintiffs  were  allowed  to  use  the  doctor  as  a 
medical  expert);  (U)  interpreting  a  District  expert  witness's 
response  to  a  cross-examination  question  for  the  jury;  (5)  tell- 


326 


ing  the  jury  that  the  deceased's  death  was  as  a  result  of  the 
theory  set  forth  by  the  District  and  its  medical  examiner  (prior 
to  dismissing  the  jury);  and  (6)  conspiring  with  the  court  repor- 
ters to  alter  the  trial  transcript  for  the  purpose  of  impeaching 
Plaintiffs'  counsel  credibility  and  for  denying  Plaintiffs  cer- 
tain relief  at  trial  (e.g.,  benrh  warrant)  and  on  appeal. 

U.  Plainti/fs  allege  that  Defendant  Greene,  under  color  of  law, 
deprived  Plaintiffs  of  equal  protection  of  the  law  by  treating 
them  (and  their  litigation  team)  differently,  through  disparate 
treatment,  based  on  their  race  or  color  and  economic  state  (i.e., 
black  and  poor).   One  example  of  the  disparate  treatment  was  Judge 
Greene's  treatment  of  Plaintiffs'  African-American  health  consul- 
tant expert  as  compared  to  a  similarly-situated  white  expert.  He 
deemed  the  white  expert  to  be  "clearly"  qualified  based  on  her 
education  alone,  although  she  had  no  advanced  degrees.   Conversely, 
he  adjudged  the  black  expert  to  be  "marginally"  qualified  based  on 
toth  her  education  and  experience,  and  even  though  she  (the  black 
expert)  had  two  advanced  degrees,  in  addition  to  her  bachelors  de- 
gree and  other  degrees,  licenses,  and  credentials. 

5.  Plaintiffs  allege  that  Defendants  Belson,  Ferren,  and  Wagner, 
under  color  of  District  of  Coliombia  law,  willfully  deprived  Plain- 
tiffs of  their  constitutional  right  to  due  process  of  law  by  deny- 
ing Plaintiffs  an  adequate,  proper,  and  appropriate  (under  the  cir- 
cumstances) review  of  their  claims.  That  is,  the  Court  issued  an 
unconstitutional  affirmance. 

5a.  Plaintiffs  allege  that  up  to  and  through  oral  argument, 
the  Sheffield  case  (App.  No.  89-369)  was  screened  and  assigned  a 
"Regular"  status  (and  was  placed  on  the  "Regular"  calendar),  and, 
invariably,  "Regular"  calendar  cases  are  published,  regardless  of 


327 


whether  the  decision  below  is  affirmed  or  reversed.  The  Sheffield's 
Regular  case  was  not  published.  Plaintiffs  allege  that  the  case 
was  not  published  because  the  Defendants  were  intent  on  affirming 
the  trial  judge's  decision  and  denying  the  Plaintiffs  relief,  des- 
pite the  evidence  and  law,  and  it  would  have  been  impossible  to 
publish  an  affirmance  without  falsifying  and/or  manipulating  the 
evidence  or  facts,  therefore,  a  Kemorandun  Opinion  and  Judgment 
was  submitted,  which  allows  for  conclusory  findings  without  citing 
to  specific  evidence. 

5b.  Plaintiffs  allege  that  there  was  no  substantive  analysis 
of  the  legal  standard  (directed  verdict)  ,  of  their  claims,  or  of  tY 
evidence  Plaintiffs  presented  to  demonstrate  how  the  Court  reached 
its  conclusion.   In  essence,  Plaintiffs  allege,  they  did  not  re- 
ceive an  appeal  at  all.  What  they  received  was  merely  a  "symbol 
wihout  substance." 

5c.  Plaintiffs  allege  that  as  a  result  of  the  issuance  of 
the  KOJ  rather  than  an  analytical  opinion,  there  wast  (1) 'a  cover- 
up  of  the  very  serious,  gruesome,  and  perhaps,  brutal  acts  committed 
by  District  employees  against  the  deceased  while  she  was  undergoing 
recovery  from  childbirth  and  (2)  a  coverup  of  the  serious  miscon- 
duct on  behalf  of  the  trial  judge  during  the  trial  proceedings, 
including  violation  of  the  Code  of  Judicial  Conduct  and,  probably, 
violation  of  federal  criminal  law. 

6.  Plaintiffs  allege  that  the  appellate  Defendants,  under  color 
of  law  (D.C.),  otherwise  deprived  them  of  equal  protection  of  the 
law,  by  treating  them  and/or  their  case  disparately  different. 

6a.  Plaintiffs  allege  that  evidence  of  the  disparate  treat- 
ment can  be  arrived  at  by  comparing  another  inmate-wrongful  death 

-  21  - 


328 


case,  Finkelstein  v.  District  of  Columbia,  No.  88-648,  en  banc, 
June  5,  1991,  with  the  Sheffield  caset 

Similarities »  (a)  both  cases  involved  allegations  of 
wrongful  death;  (b)  both  cases  involved  prisoners  or  inmates; 
(c)  both  cases  alleged  a  failure  to  respond  to  the  needs  of  the 
deceased  inmate  by  the  respective  correction  officer  contributed 
to  the  cause  of  the  inmate's  death;  and  (d)  both  cases  were  before 
the  Court  of  Appeals  on  either  a  directed  verdict  (Sheffield)  or 
a  J.N.O.V.  (Finkelstein),  based  partly  on  causation. 

Equal  Protection  Differences!     In  Sheffield,  the  deceased 
prisoner  was  black  and  the  family's  attorney  was  black;  in 
Finkelstein,  the  deceased  prisoner  was  white  and  the  family's 
attorneys  were  white . 

DISPARATE  TREATMENT  by  the  herein  appellate  Defendants i 
(a)  in  Sheffield,  the  herein  appellate  Defendants  (Belson,  Ferren, 
and  Wagner)  voted  to  affirm  the  trial  court's  directed  verdict;  in 
Finkelstein,  they  voted  to  reverse  the  trial  court's  grant  of  a 
J.N.O.V.;  (b)  in  Finkelstein,  the  herein  panel  sustained  a  ruling 
of  an  allocation  of  damages;  in  Sheffield,  the  panel  sustained  a 
ruling  which  provided  for  no  damages .   ♦*One  other  important  simi- 
larity: both  cases  were  suits  against  the  District  and  the  trial 
courts'  judgments  were  decided  in  the  District's  favor. 
NOTEi  in  the  Sheffield  case,  besides  the  failure  to  respond  charge, 
there  were  three  (3)  medical  malpractice  claims  and  several  other 
constitutional  and  tort  claims,  and  much  more  evidence. 

7.  Plaintiffs  allege  that  the  so-called  "appeal"  in  the  Sheffield 
case  was  merely  a  "symbol  without  substance,"  for  in  reality  they 
did  not  receive  an  appeal  at  all. 

8.  Finally,  at  least  one  judge  of  the  D.C.  Court  of  Appeals  (at 

-  ??  - 


329 


the  time)  thought  the  Sheffield  case  was  important  enough  to 
request  (and  require)  a  response  from  the  District  to  Plaintiffs' 
Petition  for  an  Initial  Hearing  En  Banc  (albeit  the  Petition  was 
ultimately  denied),  yet,  the  herein  Defendants  did  not  publish 
an  analytical  opinion,  even  though  the  case  had  been  placed- on 
Regular  calendar. 

Count  IV. 

k2   U  S.Cl  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFFS'  RIGHT  TO 
STATUTORY  ATTORNEY  FEES  (42  U.S.C.  SEC.  1988). 

1.  Plaintiffs  incorporate  by  reference  all  allegations  in  Counts 
I  through  III  as  though  those  allegations  were  set  forth  herein. 

2.  Plaintiffs  allege  further  that  Defendants,  each  and  all  of 
thera  herein  named  (except  D.C.),  under  color  of  District  of  Colum- 
bia law,  willfully  deprived  them  of  their  statutory  right  to 
attorney  fees,  pursuant  to  U-2   U.S.C.  sec.  1988. 

3.  Plaintiffs  allege  further  that  as  to  appeal  no.  89-369  (the 
object  of  this  Complaint),  they  were  the  prevailing  parties  in' 
both  the  trial  court  and  on  appeal,  and,  therefore,  are  entitled 
1D  attorney  fees,  based  on  their  civil  rights  (sec.  1983)  claims. 

k.   Plaintiffs  further  allege  that  but  for  the  erroneous  direct- 
ed verdict  depriving  them  of  their  constitutional  right  to  a  trial 
by  jury,  they  would  have  prevailed  at  trial,  and  further,  that 
based  on  the  evidence  of  record  at  the  time  the  verdict  was  direc- 
ted, they  necessarily  (and  as  a  matter  of  law)  were  the  prevailing 

parties. 

5.  Plaintiffs  further  allege  that  Defendant  Greene  specifically 
and  willfully  deprived  them  of  attorney  fees  by  directing  comments 
to  their  counsel  indicating  that  counsel  would  not  recover  attorney 


330 


fees. 

6.  Plaintiffs  allege  that  Defendants  Belson,  Ferren,  and  Wagner 
deprived  them  of  their  statutory  attorney  fees  by  unconstitutional- 
ly affriming  Defendant  Greene's  decision,  which  denied  them  at- 
torney fees,  in  full  knowledge  and  awareness  that  Plaintiffs  were 
the  true  prevailing  parties  in  the  trial  court  and  on  appeal. 

Count  V. 

k2   U.S.C.  SEC.  1985  (3)  AND  PLAINTIFFS'  FIFTH  AMENDMENT  RIGHT  TO 
EQUAL  PROTECTION  OF  THE  LAW. 

1.  Plaintiffs  incorporate  by  reference  here  all  allegations 
made  in  Counts  I  through  IV  as  though  they  were  herein  alleged. 

2.  Plaintiffs  further  allege  that  all  Defendants  herein,  under 
District  of  Columbia  law,  conspired,  at  least  indirectly,  to  de- 
prive them  of  equal  protection  of  the  law  as  to  their  Seventh 
Amendment  right  to  a  trial  by  jury  and  their  Fifth  Amendment  right 
to  due  process  of  law,  based  on  their  race  or  color  (African-Ameri- 
can or  black)  regarding  the  civil  case  of  Alice  Sheffield  v.  Dis- 
trict of  Columbia,   CA  NO.  9799-8?  and  App.  No.  89-369- 

3.  Plaintiffs  allege  that  Defendant  Greene  acted  in  furtherance 
of  the  conspiracy  by  deliberately  and  with  ill-will  directing  a 
verdict  in  favor  of  the  District  in  view  of  Plaintiffs  overwhelm- 
ing evidence  supporting  their  case  and  against  the  District  and  by 
treating  the  Sheffield  case  differently  from,  at  least,  the  case  of 
Washington  v.  Washington  Hospital  Center,  579  A. 2d  177  (D.C.  1990) 
(in  that  case,  he  stated  that  the  case  would  be  submitted  to  the 
jury  based  on  a  party's  admission  (and  3  other  supportive  documents) 
alone),  the  Sheffield  case  had  much  more  evidence  than  Washington 
(where  liability  was  premised  on  a  theory  of  causation)  but 


331 


he  did  not  submit  it  to  the  jury. 

U.  Plaintiffs  allege  that  Defendants  Belson,  Ferren,  and 
Wagner  acted  in  furtherance  of  the  conspiracy  by  affirming  De- 
fendant Greene's  actions  in  full  view, and  awareness  of  the  over- 
whelming evidence  Plaintiffs  produced  and  the  serious  misconduct 
by  Defendant  Greene  in  governing  the  trial  proceedings;  by  not 
providing  Plaintiffs  with  a  due  process  and  meaningful  appeal 
(in  essence,  they  had  no  appeal  at  all),  especially  when  con- 
sidering the  complexity  (or  seriousness)  of  several  of  the  claims-- 
indeed,  Plaintiffs'  medical  malpractice  claim  based  on  an  over- 
dose of  morphine  was  not  even  mentioned  in  the  appellate  Defen- 
dants' Memorandum  Opinion  and  Judgment,  and  this  was  the  most 
serious  local  law  claim  brought  (and  upon  which  Plaintiffs  had 
the  most  evidence — which  is  why  it  was  not  mentioned.  Plaintiffs 
contend);  and  by  treating  their  appeal  differently  from  that  of 

Finkelstein  which  they  voted  to  reverse  (where  Plaintiffs  herein 

evidence 
had  at  least  as  much  or  moreAto  support  their  claim  of  a  failure 

to  respond  as  in  Finkelstein,  supra). 

5.  Plaintiffs  allege  that  Defendant  Greene  conspired,  at  least 
indirectly,  with  the  trial  court  reporters  to  alter  the  trial 
transcript  in  order  to  deny  Plaintiffs  equal  protection  to  a  due 
process  fair  trial  and  appeal. 

6.  Plaintiffs  allege  that  Defendant  Belson  and  other  members  of 
the  D.C.  Court  of  Appeals  conspired  to  assign  Defendant  Belson  to 
sit  on  the  panel  and  write  the  opinion  in  the  Sheffield  case  for 
the  purpose  of  denying  Plaintiffs  monetary  damages  and  other  re- 
lief.  Evidence  of  this  allegation  is  that  in  another  and  separate 
appeal  involving  the  herein  Plaintiffs,  Defendant  Belson  dismissed 
an  appeal  of  unquestionable  final  orders,  which  would  have  granted 

-  25   - 


332 


Plaintiffs  monetary  relief.   His  justification  for  refusing  to  re- 
view the  final  orders  was  that  because  there  was  a  pending  wrong- 
ful death  action,  whereby  Plaintiffs  might  obtain  monetary  relief 
(if  th'e  action  would  be  resolved  in  their  favor),  there  was  no 
need  to  grant  Plaintiffs  their  rightful  and  statutory  appeal  of 
final  orders  because  if  the  Plaintiffs  recovered  money  in  the 
Sheffield  case  that  would  supply  them  with  all  the  money  they  might 
need  for  the  matters  which  were  the  subject  of  the  final  orders. 
Thereafter,  after  being  assigned  to  write  the  opinion  in  the 
Sheffield  case,  Defendant  Belson  (and  the  remaining  appellant 
Defendants  herein)  denied  Plaintiffs  all  relief.   Consequently, 
Plaintiffs  were  denied  relief  in  both  the  prior  appeal  and  the 
Sheffield  case  (i.e.,  all  relief),  where  but  for  Defendant  Belson *s 
justification  of  the  pending  Sheffield  case,  their  final  orders  in 
the  prior  appeal  would  have  been  required  to  be  reviewed  and  they 
would  have  been  granted  relief  (in  all  likelihood). 

6a.  Plaintiffs  allege  that  further  evidence  of  a  conspiracy 
to  have  Defendant  Belson  assigned  to  the  Sheffield  appeal  (and  to 
write  the  opinion)  for  the  purpose  of  denying  Plaintiffs  relief  is 
the  fact  that  Defendant  Belson  had  prejudged  another  (and  differ- 
ent) appeal  involving  the  herein  Plaintiffs  and  was  recused  or 
removed  from  the  appeal;  therefore,  he  ought  not  have  been  assigned 
to  the  Sheffield  case  for  that  reason  alone  (and  Plaintiffs  had 
strongly  recommended  that  he  not  be  so  assigned  by  asserting  that 
he  should  be  recused  from  the  appeal--through  a  Petition  for  an 
Initial  Hearing  En  Banc). 

7.  Plaintiffs  allege  that  they  were  in  fact  deprived  of  equal 
protection  of  the  law  and  suffered  injury  therefrom,  as  identified 
here  and  in  Counts  I  through  IV. 

-  26  - 


333 


DECLARATORY  RELIEF  SOUGHT 

As  declaratory  relief,  Plaintiffs  request  that  the  Court i 

1.  Declare  that  Defendant  Greene's,  directed  verdict  (and  the 
judgment  pursuant  thereto)  in  the  case  of  Alice  Sheffield  v; 
District  of  Columbia,  et.  al.,  CA  NO.  9799-87,  was  unconstitutional 
as  violative  of  the  Seventh  Amendment  of  the  United  States  Con- 
stitution, which  guarantees  Plaintiffs  the  right  to  a  trial  by 
jury. 

2.  Declare  that  Defendants  Belson,  Ferren,  and  Wagner's  affir- 
mance of  Defendant  Greene's  directed  verdict  judgment  was  unconsti- 
tutional as  violative  of  the  Fifth  Amendment  and  Seventh  Amend- 
ment of  the  United  States  Constitution. 

3.  Declare  that  Defendant  Greene  exercised  racial  discrimina- 
tion against  the  Plaintiffs  herein  during  the  trial  proceedings 
in  violation  of  k2   U.S.C.  sec.  198I  (and  sec.  1983)- 

U.   Declare  that  Defendant  Greene's  conduct  in  governing  the 
Sheffield  case  deprived  Plaintiffs  of  Fifth  Amendment  constitu- 
tional rights  to  due  process  and  equal  protection  of  the  law. 

5.  Declare  that  the  conduct  (and  treatment  of  Plaintiffs' appeal) 
of  or  by  Defendants  Belson,  Ferren,  and  Wagner  was  unconstitutional 
as  violative  of  Plaintiffs'  Fifth  Amendment  rights  to  due  process 
and  equal  protection  of  the  law. 

6.  Declare  that  all  individual  Defendants  herein  unlawfully 
deprived  Plaintiffs  of  their  statutory  right  to  civil  rights 
attorney  fees,  pursuant  to  42  U.S.C.  sec.  I988  (and  1983) 1  in  the 
Sheffield  case  on  both  the  trial  and  appellate  levels. 

7.  Declare  that  the  District  of  Columbia,  in  the  Sheffield  case, 
defaulted  (nearly  as  a  matter  of  law)  and  it  was  an  abuse  of  dis- 

-  27  - 


334 


cretion  for  the  trial  court  to  refuse  to  enter  a  default  judgment 
against  the  District. 


INJUNCTIVE  RELIEF 

As  injunctive  relief,  if  necessary,  Plaintiffs  request* 

1.  That  the  Court  enjoin  the  Superior  Court  of  the  District  of 
Columbia  from  denying  Plaintiffs  a  trial  by  jury  whereby  the  jury 
must  return  a  verdict. 

2.  That  Defendant  Greene  be  enjoined  from  governing  any  litiga- 
tion in  the  future  involving  the  herein  Plaintiffs. 

3.  That  the  D.C.  Court  of  Appeals  be  enjoined  from  denying  the 
herein  Plaintiffs  a  due  process  and  equally  protected  appeal. 

k.  That  Defendants  Belson,  Ferren,  and  Wagner  be  enjoined  from 
governing  any  litigation  in  the  future  involving  the  herein  Plan- 
tiffs. 


OTHER  RELIEF 

Plaintiffs  request  the  following  other  relief i 

1.  That  the  Court  orders  that  the  trial  by  jury,  upon  a  grant  of 
relief,  take  place  in  Federal  court,  rather  than  the  Superior  Court 
of  the  District  of  Columbia,  especially  since  the  case  involves 
several  Federal  claims  and  could  have  been  brought  in  federal  court 

initially. 

2.  That,  alternatively,  if  the  Court  does  not  find  a  total  de- 
fault by  the  District,  the  Court  orders  a  trial  on  damages  only 

-  28  - 


335 


as  to  fourC^)  Counts  of  Plaintiffs'  Second  Amended  Complaint, 
based  on  the  fact  that  as  to  these  specific  Counts  or  claims 
(i.e.,  Counts  I,  II,  XIII,  and  XV),  the  District  could  not  offer 
a  viable  defense  at  trial  that  could  defeat  the  claims. 

3.  That  the  Court  orders  that  Plaintiffs  herein  be  paid  civil 
rights  attorney  fees  for  the  herein  litigation. 
See  the  related  cases  of  Sceva  J.  Kendall  v.  John  Ferreri.  et.  al., 

CA  NO. and  Laurack  D.  Bray  v.  James  Belson,  et.  al., 

CA  NO. ,  filed  concurrently  herewith. 


!_"/>  2-, 


-*'-.  ^L<-^^-<21 I-''    ^-^Ur.< 


LAURACK  D.  BRAY,  ESQ.   ' 
Counsel  of  Record  for  Plaintiffs 
624  17th  Street,  N.E. 
Washington,  D.C.   20002 
(202)  397-7209 
#406336 


336 


UNITED  STATES  DISTRICT  COURT 
FOR  THE  DISTRICT  OF  COLUMBIA 


SCEVA  J.  KENDALL 

Serve  at:  2^23  l^th  Street,  N.E.  #2 
Washington,  D.C.   20002 


Plaintiff, 


JOHN  FERREN,  JOHN  TERRY,  AND  MICHAEL  FARRELL 

Individually  and  as  Judges  of  the  D.C.  Court 
of  Appeals 


Serve  at:  D.C.  Court  of  Appeals 
D.C.  Courthouse 
500  Indiana  Avenue,  N.W. 
Washington,  D.C.   20001 


6th  Floor 


Defendants , 


CA 


Nc'/z-^e 


COMPLAINT 
DECLARATORY  JUDGMENT  AND  OTHER  RELIEF 

Jurisdiction 
1.  Jurisdiction  of  this  court  is  invoked  pursuant  to  28  U.S.C. 
sections  1331,  13^3,  2201,  and  2202;  U2  U.S.C.  section  1983?  and 
the  Fifth  Amendment  of  the  United  States  Constitution. 


Parties 

1.  The  Plaintiff  is  Sceva  J.  Kendall. 

2.  The  Defendants  are  John  Ferren,  John  Terry,  and  Michael 
Farrell,  being  sued  individually  and  as  judicial  officers  of  the 


337 

District  of  Columbia  Court  or  Appeals. 

Statement  of  the  Facts 
Plaintiff  alleges  that  a  brief  statement  of  the  pertinent 
facts  is  as  follows t 

1.  Mr.  Sceva  J.  Kendall  was  convicted  and  sentenced  in  the  Su- 
perior Court  of  the  District  of  Coliunbia  for  possession  with  the 
intent  to  distribute  cocaine  (PWID).  He  noted  a  timely  appeal. 

2.  On  appeal,  Mr.  Kendall,  through  his  Brief,  raised  and  argued 
five (5)  issues  which  he  asserted  required  reversal  of  his  conviction 
and  his  acquittali  (1)  whether  the  trial  court  erred  in  denying  Mr. 
Kendall's  motion  to  suppress  the  tangible  evidence,  where  the  ar- 
resting officers  lacked  probable  cause  to  make  a  warrantless  arrest? 
(2)  whether  the  trial  court  erred  in  denying  Mr.  Kendall's  motion 
for  judgment  of  acquittal  after  close  of  all  the  evidence,  where 
there  was  insufficient  evidence  at  trial  to  prove  him  guilty  of 
PWID  beyond  a  reasonable  doubt?  (3)  whether  the  trial  court  com- 
mitted reversible  error  in  admitting  hearsay  testimony  of  the  go- 
vernment's so-called  informer?  (k)   whether  admission  of  the  so- 
called  informer's  testimony  at  trial  violated  the  Confrontation 
Clause  of  the  Sixth  Amendment  of  the  United  States  Constitution 
(and  Mr.  Kendall's  right  of  confrontation),  where  Mr.  Kendall  was 
unable  to  cross-examine  and/or  confront  the  informant  at  trial? 

and  (5)  whether  it  was  plain  error  (and,  therefore,  reversible  er- 
ror) for  the  trial  court  to  admit  into  evidence  government's  Ex- 
hibit #^,  even  in  absence  of  objection  thereto?  Mr.  Kendall  ar- 
gued that  all  of  the  above-mentioned  issues  should  have  been  de- 
cided in  his  favor  and,  consequently,  would  have  required  or  caused 
his  acquittal. 


338 


3.  The  Court  of  Appeals,  through  the  identified  Defendants 
herein,  or  vice-versa,  denied  Mr.  Kendall  oral  argument  on  any  of 
the  issues  raised,  albeit  he  specifically  requested  oral  argument j 
it  apparently  disregarded  his  Brief;  and,  acting  positively  on  the 
governmert's  "mysterious"  motion  to  remand  for  a  new  trial,  re- 
manded Mr.  Kendall's  case  for  a  new  trial,  without  deciding  or  dis- 
cussing the  issues  raised  in  his  Brief  on  appeal  (including  the 
issue  as  to  sufficiency  of  the  evidence)  and  through  an  unpublished 
order  without  comment. 

♦NOTE:  Mr.  Kendall  did  oppose  the  government's  motion  (however,  in 
his  written  request  for  oral  argument,  he  stated  that  he  would 

agree  to  a  remand  to  enter  a  judgment  of  acquittal). 

k.    On  re-trial,  after  bond  review,  status,  and  motions,  the 
government  dismissed  Mr.  Kendall's  case. 

Count  I 

42  U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFF'S  FIFTH  AMENDMENT 
CONSTITUTIONAL  RIGHT  TO  DUE  PROCESS  OF  LAW. 

1.  Plaintiff  alleges  that  Defendant  Terry,  Ferren,  and  Farrell, 
under  color  of  District  of  Columbia  (and  District  of  Columbia  Court 
of  Ap Deals)  law  deprived  him  of  his  Fifth  Amendment  right  to  due 
process  of  law.   That  is,  he  was  deprived  of  his  liberty  and  the 
right  to  prove  his  innocence  on  appeal  without  due  process  of  law. 

2.  Plaintiff  alleges  that  the  above-named  Defendants  deprived 
him  of  his  liberty  and  the  right  to  prove  his  innocence  on  appeal 
without  due  process  by  precluding  his  appeal  of  issues  that  would 
have  caused  his  acquittal,  or,  at  least,  a  reversal  without  a  remand 
for  a  new  trial,  which,  in  turn,  would  have  caused  his  freedom  from 
incarceration  (and  each  day  that  he  remained  incarcerated  after  the 
order  to  remand  for  a  new  trial  (rather  than  a  reversal  or  a  re- 
versal and  remand  to  enter  a  judgment  of  acquittal)  was  a  loss  of 


339 


liberty  without  due  process). 

3.  Plaintiff  alleges  that  his  primary  purpose  for  appealling 
his  conviction  was  to  prove  his  innocence,  that  is,  that  he  did 
not  commit  the  crime  with  which  he  was  charged,  and  because  he 
did  not  get  to  adoress  the  very  issues  that  would  have  given  him 
the  opportunity  to  so  prove  his  innocence,  he  was,  in  essence,  de- 
prived of  that  purpose  and  the  right  of  appeal  directed  thereto . 

4.  Plaintiff  alleges  that  he  continues  to  suffer  injury  from  his 
denied  right  to  a  due  process  appeal  ajid  from  his  denied  right  to 
prove  his  innocence  of  the  crime  with  which  he  was  charged  because 
the  record  does  not  reflect  that  he  was  acquitted  or  that  the 
government  lacked  probable  cause  to  arrest  him  (which  would  go  to 
sealing  of  his  arrest  record  and  civil  actions). 

5.  Further,  Plaintiff  alleges  that  the  order  to  remand  for  a  new 
trial,  without  more,  was  a  denial  of  due  process  because  it  pro- 
vided no  guidance  or  directions  for  the  new  trial  as  to  avoid  a  re- 
petition of  error.   For  example,  see  Clark  v.  United  States,  NO. 
89-700,  D.C.,  June  21,  1991,  where  ".  .  .  Clark  is  entitled  to  a 
new  trial.   We  briefly  address  those  of  Clark's  remaining  claims  of 
error  which  are  likely  to  arise  if  and  when  the  case  is  tried 

again."  The  remand  was  also  retaliatory,  see  Sheffield  v.  D.C. , 
App.  No.  89-369  (D.C.  Court  of  Appeals) (based  on  counsel's  conduct). 

6.  Plaintiff  alleges  that  he  was  denied  due  process  by  the  here- 
in Defendants  not  acknowledging  and  relying  on  his  Brief  to  deter- 
mine and/or  decide  the  issues  raised  on  appeal. 

7.  Plaintiff  alleges  further  that  the  Defendants  knew  when  they 
remanded  his  case  for  a  new  trial  without  addressing  the  issues  of 
his  denied  motions  for  supression  of  the  tangible  evidence  and  for 
judgment  of  acquittal  and  of  plain  error  in  admitting  a  government 
exhibit  (i.e.,  sufficiency  of  the  evidence  to  prove  guilt)  that  such 


340 


conduct  was  at  least  improper,  based  on  their  ovm  (i.e.,  D.C. 
Court  of  Appeals)  case  law.   See,  i.e..  Kind  v.  U.S . ,  529  A. 2d 
29^  (D.C.  App.  1987)(Mack,  J.,  concurring)  where  "Under  the  Double 
Jeopardy  Clause,  remand  for  retrial  is  forbidden  where  the  evidence 
presented  in  the  original  trial  was  insufficient  to  convict.  (Ci- 
tation omitted).  ...   If  asked,  a  reviewing  court  must  always 
assure  itself  that  retrial  is  constitutionally  permitted  under  the 
Double  Jeopardy  Clause,  and  if  we  had  not  done  so  here ,  our  remand 
for  a  new  trial  would  be  improper."  (Emphasis  added). 


Count  II 

42  U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFF'S  CONSTITUTIONAL 
RIGHT  TO  EQUAL  PROTECTION  OF  THE  LAW. 

1.  Plaintiff  incorporates  by  reference  all  allegations  set  forth 
in  Count  I  as  though  they  were  herein  alleged. 

2.  Plaintiff  alleges  further  that  Defendants  herein,  under  color 
of  District  of  Columbia  law,  deprived  him  of  equal  protection  of  the 
law,  by  retaliating  aga:nst  him  for  his  counsel's  conduct  (Sheffield) 

3.  Plaintiff  alleges  that  he  was  at  least  deprived  of  equal  pro- 
tection by  having  his  case  being  treated  differently  from  the  cases 
of  Brown  v.  U.S. ,  No.  86-1276,  D.C,  May  8,  I99I  and  Cauthen  v. 
U.S. ,  No.  89-1216,  June  7,  1991,  where  all  three  cases  (including 
the  Kendall  case)  involved  anonymous  tips,  reasonable  suspicion, 
and  probable  cause  to  arrest  and  where  all  three  cases  focused  on 
the  United  States  Supreme  Court  case  of  Alabama  v.  White,  110  S.Ct. 
2412  (1990)  as  being  decisive  or  instructive. 

First  of  all,  oral  argument.  In  both  Brown  and  Cauthen,  Ap- 
pellants, through  counsel,  were  granted  oral  argument.   Mr.  Kendall, 


341 


who  specifically  requested  oral  argument,  was  denied  oral  argument. 
In  Cauthen,  oral  argument  was  performed  in  part  by  a  white  student 
counsel  who  requested  and  was  granted  the  right  to  orally  argue  the 
case.   In  the  Kendall  case,  Mr.  Kendall  had  retained  (i.e.,  paid 
and  incurred  costs)  an  attorney  to  r3present  him  on  appeal,  but  the 
Court  of  Appeals  denie^i  his  attorney  the  right  to  orally  argue  his 
appeal.   His  attorney  was  black. 

Second,  appellant  Briefs  and  the  Court's  reliance  thereon.   In 
neither  Brown  nor  Cauthen  did  the  appellants  cite  nor  discuss 
Alabama  v.  White,  supra  (neither  in  their  Table  of  Authorities  nor 
their  Argximent  section  of  the  Brief — i.e.,  nowhere  in  the  Brief). 
But,  in  both  cases,  the  Court  perfonned  an  extensive  discussion  of 
White  in  its  written  opinion,  with  Cauthen  going  so  far  as  to  state, 
"Alabama  v.  White.  ...  on  which  appellant  heavily  relies"  and 
"Appellant  argues  that  the  anonymous  tip  was  inadequate  under  White 
because  it  contained  no  predictions  as  to  anyone's  future  behavior 
.  .  .  ."  (Emphasis  here  and  in  original).   If  the  Appellant  in 
Cauthen  indeed  "heavily  relie(d)"  on  White  as  the  Court  opinion  in- 
dicates, he  certainly  did  not  do  so  in  his  Brief  (he  didn't  even 
cite  White  — not  to  mention  cite  it  as  a  case  chiefly  or  principally 
relied  upon).   Conversely,  Mr.  Kendall's  Brief  specifically  cited, 
discussed,  and  principally  relied  on  White  in  urging  reversal  and 
Mr.  Kendall's  acquittal.   Yet,  the  Defendants  herein  not  only  did 
not  cite  to  or  discuss  White  in  their  remand  order,  but  they  also 
totally  disregarded  Mr.  Kendall's  Brief  and  argiiments. 

Third,  the  published  opinion.  In  both  Brown  and  Cauthen,  the 
Court  published  a  written  opinion  (with  analysis)  discussing  White 
extensively,  especially  in  Brown.  This  causes  Appellant's  counsel 
in  both  cases  to  be  acknowledged  and  credited  with  causing  the  re- 


342 


versal  (based  on  and  through  their  written  and  oral  argument).   In 
iVIr.  Kendall's  case,  the  Defendants'  herein  produced  an  unpublished 
order  that  cites  no  cases,  not  even  White,  and,  that  saime  unpublish- 
ed order  facially  credits  the  government  with  a  granted  motion 
(even  though  argument  in  Mr.  Kendall's  Brief  caused  the  "mysterious" 
motion)  and  makes  it  appear  as  if  the  government  was  the  prevailing 
party  on  appeal  and  that  the  government  did  Mr.  Kendall  a  favor  in 
moving  to  remand . 

Mr.  Kendall  alleges  that  it  is  particularly  striking  that  the 
court's  discussion  of  White  (and  argument  related  thereto)  in 
Brown  mirrors  the  argument  in  his  Brief  (i.e.,  anonymous  tip,  re- 
liability, and  credibility — notice  the  format  of  the  argument  in 
the  Brown  and  Kendall  cases).   It  is  also  striking  that  Defendant 
Ferren  was  a  member  of  the  majority  panel  in  Brown  who  voted  to  pub- 
lish the  opinion  in  that  case.   Yet,  he  did  not  so  vote  to  publish 
(apparently)  in  the  Kendall  case,  where  Mr.  Kendall  himself  (through 
counsel) (and  not  the  Court)  argued  and/or  discussed  White  specifi- 
cally. 

Finally,  the  majority  panel  in  Brown  (including  Defendant 
Ferren)  granted  the  Defendant's  motion  to  suppress  the  evidence,  but 
the  panel  in  Mr.  Kendall's  case  (including  Defendant  Ferren)  voted 
to  remand  the  case  for  a  new  trial  (even  though  the  facts  in  Mr. 
Kendall's  case  were  more  compelling  for  granting  the  motion  to  sup- 
press than  in  Brown  because  Mr.  Kendall,  in  contrast  to  the  Defen- 
dant in  Brown- -where  there  was  actual  possession  of  contraband  on 
the  Defendant's  person  at  the  time  of  the  arrest,  did  not  possess 
any  contraband  on  his  person  when  he  was  seized,  i.e.,  constructive 
possession).   And,  the  Brown  case  was  decided  before  the  Kendall 
case.   Brown  was  decided  May  8,  1991  and  Kendall,  May  15.  1991* 


343 


k.   Mr.  Kendall  alleges  that  part  of  the  Defendants'  motivation 
for  their  discriminatory  actions  in  his  case  was  retaliation  (to- 
wards his  appellate  counsel,  for  counsel,  on  appeal,  having 
charged  a  trial  judge  with  racial  discrimination--in  a  separate, 
civil  appeal,  see  Alice  Sheffield  v.  District  of  Columbia,  et.  al.. 
App.  No.  89-369 (D.C.  Court  of  Appeals)).   See  also  related  Complaint 
filed  herewith,  Alice  Sheffield,  et.  al .  v.  Henry  F.  Greene,  et.  al. 

CA  NO. (1991).   NOTE:  Because  Mrs.  Sheffield  filed  a 

Petition  for  Initial  Hearing  En  Banc,  all  members  of  the  regular 
Court  of  Appeals  were  required  to  read  the  Brief  which  contained 
the  charge  and  discussion  thereof. 

ka.   Mr.  Kendall  alleges  that  other  incidents  of  prejudicial 
actions  that  resulted  from  retaliation  werei  (1)  after  Mr.  Kendall 
had  moved  for  a  release  pending  appeal  and  the  motion  had  been  de- 
nied (even  though  Mr.  Kendall  refuted  all  reasons  the  government 
had  argued  against  the  release),  the  order  denying  the  motion  was 
sent  to  a  false  address,  so  counsel  for  Defendant  never  received  it 
and  Mr.  Kendall  lost  his  ordinary  right  to  move  for  a  rehearing  of 
the  denied  motion  (i.e.,  time  for  so  moving  having  expired  without 
his  knowledge);  (2)  after  the  court  ordered  Mr.  Kendall's  case  re- 
moved from  the  March,  1991  argument  calendar  (i.e.,  the  original 
briefing  schedule  canceled),  that  order  was  sent  to  a  false  address 
as  well,  so  Mr.  Kendall's  counsel  never  received  that  order  either; 
therefore,  and  consequently,  the  time  passed  for  Mr.  Kendall  to 
move  for  a  reconsideration  of  that  action  so  that  the  case  might  be 
placed  back  on  the  original  March,  1991  calendar;  and  (3)  because 
the  government  conceded  that  his  conviction  would  have  to  be  vacated 
and  the  judgment  reversed,  Mr.  Kendall  filed  a  Petition  for  a  Writ 
of  Habeas  Corpus  renewing  his  request  for  a  release  pending  appeal. 


344 


The  Court  of  Appeals  refused  to  materially  act  on  his  Petition 
(i.e.,  grant  or  deny  it)  until  after  appellate  proceedings  were 
complete  and  during  re-trial  proceedings,  and  then,  acted  to  dis- 
miss the  Petition  for  a  lack  of  subject  matter  jurisdiction. 

Count  III 

42  U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFF'S  FIFTH  A^iEND^;EKT 
CONSTITUTIONAL  RIGHT  NOT  TO  BE  SUBJECTED  TO  DOUBLE  JEOPARDY. 

1.  Plaintiff  incorporates  by  reference  each  and  every  allega- 
tion set  forth  in  Counts  I  and  II,  as  though  they  were  herein  al- 
leged. 

2.  Plaintiff  alleges  that  Defendants  herein,  under  color  of 
District  of  Columbia  law,  willfully  deprived  him  of  his  Fifth  Amend- 
ment constitutional  right  not  to  be  subjected  to  double  jeopardy; 
and  that  he  was  so  subjected  to  double  jeopardy. 

3.  Plaintiff  alleges  that  because  the  Defendants  did  not  act  on 
or  address  the  issue  of  insufficiency  of  the  evidence  on  appeal,  as 
they  should  have,  it  allowed  the  government  the  right  to  re-try  him 
on  remand,  and  it  caused  the  trial  court  (on  remand)  to  denj  his 
motion  to  dismiss  the  case  against  him  on  double  jeopardy  grounds. 

k.    Plaintiff  alleges  that  he  was  subjected  to  a  bond  review  hear- 
ing, a  status  hearing  (at  which  the  government  made  a  plea  offer 
which  Plaintiff  refused),  and  a  motions  (suppression)  hearing  (at 
which  the  government  dismissed  the  case),  which  he  would  not  have 
been  subjected  to  if  the  Defendants  would  have  reviewed  the  issues 
regarding  sufficiency  of  the  evidence,  and,  thereafter,  would  have 
found  in  his  favor  (and  reversed  and  remanded  to  enter  a  judgment 
of  acquittal  or  simply  reversed--without  a  remand  for  a  new  trial). 


345 


Count  IV 
1*2   U.S.C.  SEC.  1983  AND  DEPRIVATION  OF  PLAINTIFF'S  RIGHT  TO  COSTS. 

1 .  Plaintiff  incorporates  by  reference  each  and  every  allegation 
set  forth  in  Counts  I  and  II,  as  though  said  allegations  were  herein 
alleged. 

2.  Plaintiff  alleges  that  Defendants  herein,  under  color  of 
District  of  Columbia  law,  deprived  him  of  his  right  to  costs  pur- 
suant to  Rule  39  of  the  D.C.  Court  of  Appeals  rules  by  designating 
the  government  as  the  prevailing  party  on  appeal  (i.e.,  granted 
motion  to  remand),  when  in  actuality  Plaintiff  was  the  prevailing 
party  (because  he  received  the  relief--a  type--that  he  sought  on 
appeal) . 

3.  Plaintiff  alleges  that  whether  it  is  by  grant  of  the  govern- 
ment's motion  to  remand  for  a  new  trial  or  by  direct  reversal  and 
remand  for  a  new  trial,  the  judgment  was  reversed  and  he  was  in 
fact,  and  as  a  matter  of  law,  the  prevailing  party  on  appeal. 

k.   Plaintiff  alleges  that  in  reference  to  Rule  39 's  allowance  of 
costs  where  the  decision  has  been  reversed  on  appeal,  even  if  the 
remand  for  a  new  trial  does  not  necessitate  a  reversal,  a  proper  re- 
view of  his  issues  raised  on  appeal  would  have  required  a  reversal 
nonetheless . 


-  10  - 


346 


DECLARATORY  RELIEF 

Plaintiff  requests  that  the  Court  declare  the  following! 

1.  That  the  Defendants'  order  to  remand  for  a  new  trial  in  the 
case  of  Kendall  v.  U.S..  App.  No.  90-378  (D.C.  Court  of  Appeals) 
was  unconstitutional  as  violative  of  the  Fifth  Amendment  of  the 
United  States  Constitution  (on  due  process,  equal  protection,  and 
double  jeopardy  grounds). 

2.  That  for  purposes  of  Rule  39  costs,  the  decision  in  the  Ken- 
dall case  was  reversed  (or  alternatively,  Mr.  Kendall  wais  the  pre- 
vailing party),  and  therefore,  costs  shall  be  taxed  against  the 
appellee  (United  States). 


OTHER  RELIEF 

Plaintiff  requests  the  following  other  relief t 

1 .  That  the  Court  perform  a  de  novo  review  of  his  Brief  and  the 
Record  to  determine  whether  a  judgment  of  acquittal  should  have  been 
entered  on  Mr.  Kendall's  behalf  (and  thereby  determine  his  inno- 
cence regarding  the  charges  against  him). 

2.  Order,  pursuant  to  the  Court's  inherent  power  to  do  so,  that 
Rule  39  costs  include  attorney's  fees  based  on  the  circumstances  of 
the  treatment  of  his  appeal;  and,  also,  based  on  special  events,  orde 
that  he  be  paid  attorney's  fees  for  all  post-appeal  matters  (i.e., 
re-trial  matters)  if  the  Court  finds  that  he  should  have  been  ac- 
quitted on  appeal  or  that  the  evidence  was  insufficient  to  permit 

a  re-trial. 

3.  Order  that  Plaintiff  be  paid  attorney  fees  for  the  herein 


347 


litigation. 

k.    Order,  if  within  the  Court's  jurisdiction,  that  Mr.  Kendall's 
arrest  record  regarding  the  arrest  and  conviction  in  question  here, 
be  expunged  or  otherwise  sealed  based  on  8  lack  of  probable  cause 
by  the  arresting  officers  in  the  case  to  legally  or  constitutional- 
ly   effectuate  an  arrest. 

See  the  related  cases  of  Alice  Sheffield,  et.  al.  v.  Henry  F. 

Greene,  et.  al.,  CA  NO. ,  and  Laurack  D.  Bray  v.  James 

Belson,  et .  al . ,  CA  NO. ,  filed  concurrently  herewith. 


^^^^ .    ^^  ^ns:^ . 

LAURACK  D.  BRAY,  ESQ.   (y     ^~ 
Counsel  of  Record  for  PlVj\itiff 
624  17th  Street,  N.E. 
Washington,  D.C.   20002 
(202)  397-7209 
#406336 


NOMINATION  OF  ROSEMARY  BARRETT,  OF 
FLORIDA,  TO  BE  U.S.  CIRCUIT  JUDGE  FOR 
THE  ELEVENTH  CIRCUIT 


THURSDAY,  FEBRUARY  3,  1994 

U.S.  Senate, 
Committee  on  the  Judiciary, 

Washington,  DC. 

The  committee  met,  pursuant  to  notice,  at  10:14  a.m.,  in  room 
SD-226,  Dirksen  Senate  Office  Building,  Hon.  Joseph  R.  Biden,  Jr., 
chairman  of  the  committee,  presiding. 

Also  present:  Senators  Heflin,  Simon,  Moseley-Braun,  Thurmond, 
Hatch,  Simpson,  Grassley,  and  Cohen. 

OPENING  STATEMENT  OF  CHAIRMAN  BIDEN 

The  Chairman.  The  hearing  will  come  to  order. 

I  would  like  to  invite  the  judge,  as  well  as  our  two  esteemed  col- 
leagues to  the  table,  if  they  could.  The  order  in  which  we  will  pro- 
ceed is  Senator  Hatch  and  I  have  relatively  brief  opening  state- 
ments, and  then  we  will  invite  our  colleagues  from  Florida  to  intro- 
duce to  the  committee  the  judge,  as  well  as  her  small  family,  and 
then  we  will  swear  the  judge  and  we  will  get  under  way. 

The  committee  is  convened  to  consider  the  nomination  of  Chief 
Justice  Rosemary  Barkett,  of  the  Florida  Supreme  Court,  to  become 
a  judge  on  the  U.S.  Court  of  Appeals  for  the  Eleventh  Circuit. 

Justice  Barkett  enjoys  an  impressive  background,  by  any  meas- 
ure. Her  personal  story  is  intriguing,  and  her  professional  life  is 
marked  by  commitment  to  excellence,  public  service,  justice  and,  I 
might  add,  integrity. 

Born  in  Mexico,  one  of  16  children.  Justice  Barkett  came  to  the 
United  States  as  a  child,  speaking  only  a  few  words  of  English.  As 
a  young  woman,  Justice  Barkett  became  a  nun,  a  vocation  she  con- 
tinued until  1967.  During  her  time  in  the  convent,  she  was  known 
as  Sister  Michael,  reminding  me  of  my  last  mother  superior,  Sr. 
Michael  Murray.  I  hope  you  are  going  to  be  more  lenient  on  me 
than  she  was.  And  she  was  also  a  sister  of  St.  Joseph's.  [Laughter.] 

During  this  time,  while  the  nominee  taught  in  elementary  and 
secondary  schools,  she  also  earned  her  B.S.  degree  suma  cum  laude 
from  Spring  Hill  College.  Justice  Barkett  then  entered  law  school 
at  the  University  of  Florida.  She  finished  at  the  top  of  her  class, 
the  class  of  1970,  earning  an  award  for  the  outstanding  student, 
the  outstanding  graduate. 

Justice  Barkett  had  a  distinguished  9-year  career  as  a  lawyer  in 
private  practice.  In  1979,  then  Gov.  Bob  Graham  appointed  her  to 

(349) 


350 

fill  an  unexpired  term  on  the  bench  as  a  trial  judge.  She  served  as 
a  trial  judge  until  1984,  when  Grovemor  Graham  appointed  her  to 
the  court  of  appeals.  One  year  later,  Gk)vemor  Graham  appointed 
Rosemary  Barkett  to  the  Florida  Supreme  Court,  making  her  the 
first  woman  to  sit  on  the  court. 

Facing  an  election  to  retain  her  seat  on  the  supreme  court  in 
1992,  Justice  Barkett  garnered  a  number  that  any  one  of  us  in  this 
body  would  love  to  get  within  10  points  of;  61  percent  of  the  people 
of  her  State  decided  that  she  should  retain  that  seat. 

Following  that  election,  her  colleagues  on  the  court  named  her 
chief  justice.  And  I  might  add,  a  number  of  issues  raised  that  will 
be  raised  here  today  about  your  view  on  the  death  penalty  and  the 
rest  were  raised  in  your  State  of  Florida  when  you  sought  reelec- 
tion. 

One  of  the  things  I  found  somewhat  interesting  is  Florida  has 
been,  generally  speaking,  a  State  that  has  been,  if  not  preoccupied, 
spent  a  lot  of  time  on  the  criminal  justice  system  and  concern 
about  crime.  The  fact  that  61  percent  of  them  thought  you  should 
go  back  on  the  bench  obviously  says  something  about  what  your  at- 
titude on  these  issues  are. 

Thus,  Justice  Barkett  has  observed  the  practice  of  law  from  the 
perspective  of  a  litigant,  as  a  trial  judge,  and  ultimately  undertak- 
ing the  task  of  appellate  review.  Her  more  than  20  years  in  the 
legal  profession,  her  thousands  of  cases  on  the  supreme  court,  court 
of  appeals,  trial  court,  and  private  practice  provide  her  with  a 
wealth  and  a  breadth  of  experience  to  take  with  her  to  the  eleventh 
circuit. 

One  mark  of  esteem  she  held  over  the  years  is  the  fact  that,  in 
1992,  the  Academy  of  Florida  Trial  Lawyers  created  the  Rosemary 
Barkett  Award,  which  is  presented  annually  to  a  person  who  has 
demonstrated  outstanding  commitment  to  equal  justice  under  the 
law. 

I  mention  almost  as  an  aside  that,  by  unanimous  vote,  the  Amer- 
ican Bar  Association's  Judicial  Selection  Committee  rated  Justice 
Barkett  well  qualified  to  sit  on  the  eleventh  circuit.  They  cannot 
rate  it  any  higher  than  that. 

I  know  that  critics  of  Justice  Barkett,  both  during  the  retention 
election  and  now  here,  have  raised  concerns  about  the  nominee's 
views  on  the  death  penalty.  As  everyone  knows,  I  support  the 
death  penalty,  and  I  have  looked  carefully  at  this  issue.  I  hope  Jus- 
tice Barkett's  record  will  be  considered  in  its  entirety,  especially 
given  that,  during  her  8  years  on  the  court,  she  has  participated 
in  literally  hundreds  of  death  penalty  cases. 

I  will  look  at  Justice  Barkett's  complete  record  and  focus  on 
whether  she  will  apply  the  law  in  accordance  with  the  standards 
and  precedents  that  bind  eleventh  circuit  judges. 

A  distinction.  Judge,  I  am  going  to  ask  you  to  make  is  as  to  how 
you  view  the  distinction  between  being  a  supreme  court  justice  in 
the  State  of  Florida,  looking  at  the  Florida  Constitution,  as  well  as 
the  U.S.  Constitution,  and  what  you  believe  the  role  in  your  view 
of  stare  decisis,  how  it  binds  you  or  not  as  an  eleventh  circuit  court 
of  appeals  judge  in  the  Federal  system. 


351 

I  will  question  Justice  Barkett  about  her  role  on  the  State  su- 
preme court  and  ask  her  to  comment  on  a  distinction,  as  I  said,  be- 
tween those  roles  and  the  role  of  a  Federal  appellate  judge. 

Further,  I  am  interested  in  your  views  of  your  obligation  to  ad- 
here to  precedent  and  your  view  on  the  restrictive  roles  of  the 
courts  and  legislatures  in  determining  the  meaning  of  the  statute. 
I  also  will  ask  you.  Justice  Barkett,  to  make  a  distinction  for  the 
record  as  to  whether  or  not  applying  the  law,  whether  it  is  a  death 
case  or  any  other  case,  whether  your  obligation  as  a  supreme  court 
justice  for  the  State  of  Florida  requires  you  to  look  at  the  Florida 
Supreme  Court  where  it  may  or  may  not  diverge  from  the  U.S.  Su- 
preme Court  or  the  U.S.  Constitution. 

Throughout  the  12  years  of  Republican  nominees  to  the  Federal 
bench,  I  have  maintained  that  three  factors  should  govern  my  deci- 
sion for  a  lower  court  judge.  Lower  meaning  lower  than  the  Su- 
preme Court.  I  view  the  Supreme  Court  the  only  court  in  the  land 
that  can  overrule  its  own  decisions. 

First,  does  the  nominee  have  the  capacity,  competence,  and  tem- 
perament to  be  a  court  of  appeals  judge;  second,  is  the  nominee  of 
good  character  and  free  of  conflicts  of  interest;  and,  third,  would 
the  nominee  faithfully  apply  the  Constitution  and  the  precedents 
of  the  Supreme  Court. 

I  have  voted  for  some  judges  with  whom  I  hardly  have  anything 
in  common,  whose  view  of  constitutional  interpretation  vary  sharp- 
ly from  mine,  but  I  believed  them  to  be  honorable  people  who  have 
a  view  of  stare  decisis  and  would  apply  the  law  as  the  court  has 
seen  it.  I  will  apply  this  standard  in  the  case  of  Justice  Barkett, 
as  well. 

So  I  welcome  you,  Justice  Barkett.  I  look  forward  to  seeing  you, 
and  I  hope  that — I  say  this  to  all  nominees  who  come  before  the 
committee — I  hope  that  your  graciousness  and  cordiality  will  not 
cease  once  the  lifetime  robe  is  placed  over  your  shoulders. 

I  see  one  of  the  leading  lawyers  in  the  State  of  Florida  smiling. 
He  knows  what  I  mean.  I  fmd  that  all  nominees  are  nice  to  Sen- 
ators while  things  are  moving  on,  but  after  they  get  confirmed,  I 
am  almost  reminded  by  all  of  them  how  they  are  not  politicians, 
when  an  awful  lot  of  them  got  their  jobs  because  they  were  politi- 
cians. At  any  rate,  excuse  the  aside,  but  it  is  something  I  often 
speak  to  and  I  should  not. 

I  yield  to  my  friend  from  Utah,  the  ranking  member. 

OPENING  STATEMENT  OF  SENATOR  HATCH 

Senator  Hatch.  Thank  you,  Mr.  Chairman. 

I  welcome  you.  Justice  Barkett,  and  I  certainly  welcome  our  es- 
teemed colleagues,  both  of  whom  are  very  strongly  supporting  you, 
and  that  is  something  that  we  take  great  notice  of,  as  well  as  the 
fine  person  you  are.  I  welcome  you  to  the  committee  and  I  con- 
gratulate you  on  the  honor  of  being  nominated  to  this  very  pres- 
tigious position  by  President  Clinton. 

Chief  Justice  Barkett  and  I  had  an  opportunity  to  meet,  more 
than  once,  and  I  enjoyed  our  conversations  in  the  past,  and  I  have 
absolutely  no  doubt  as  to  your  competence  and  ability. 

Where  I  am  concerned,  however — and  I  should  state  it  straight 
up — is  about  your  judicial  philosophy,  and  I  intend  to  explore  some 


352 

of  these  concerns  today  and,  of  course,  allow  you  the  full  oppor- 
tunity to  respond.  To  enable  you  to  do  so,  I  have  provided  you  with 
a  list  of  cases  that  I  probably  will  explore  with  you,  and  hopefully 
that  has  been  helpful  to  you. 

In  my  view,  Mr.  Chairman,  the  political  and  policy  views  of  the 
judicial  nominee  are  not  relevant  to  evaluating  such  a  nominee. 
What  is  important  is  that  the  nominee  interpret  the  law  according 
to  the  meaning  of  its  Framers.  Differences  over  such  meaning  obvi- 
ously can  occur. 

But  if  the  touchstone  of  interpreting  our  laws  is  not  the  intent, 
the  meaning  of  the  Framers  of  the  law,  then  a  judge  is  simply  leg- 
islating his  or  her  own  policy  preferences  or  political  preferences 
from  the  bench.  A  judge  who  does  this  usurps  the  role  of  democrat- 
ically elected  legislators  reserved  to  them  by  the  Constitution. 

I  should  also  note  that  in  the  case  of  the  Constitution,  while  its 
meaning  in  my  view  remains  unchanged,  it  is  clearly  applicable  to 
changing  circumstances.  Just  as  there  is  a  fundamental  distinction 
between  politics  and  judges,  there  is  a  basic  difference  between  a 
political  litmus  test  and  an  inquiry  into  a  nominee's  jurisprudential 
outlook. 

An  essential  part  of  my  constitutional  duty  as  a  Senator  in  the 
confirmation  process,  and  certainly  as  ranking  member  on  this 
committee,  is  to  ensure  that  judicial  nominees  will  faithfully  inter- 
pret and  enforce  the  Constitution  and  other  laws  of  the  United 
States. 

Now,  that  does  not  mean,  of  course,  that  a  nominee  must  agree 
with  my  interpretation  or  any  other  Senator's  interpretation  in  all 
cases.  I  have  voted  to  confirm  judges  nominated  by  Republican  and 
Democratic  Presidents  who  had  ruled  in  other  judicial  positions  or 
who  I  could  anticipate  would  rule  differently  from  me  in  a  good- 
faith  application  of  the  law  in  more  than  a  few  instances.  Indeed, 
I  voted  to  confirm  such  a  nominee,  Ruth  Bader  Ginsburg,  for  the 
Supreme  Court  last  year. 

It  does  mean,  however,  that  in  fulfilling  their  duties,  judges  need 
to  keep  their  political  and  policy  views  out  of  the  interpretation  of 
the  law.  If  a  nominee's  record  or  responses  give  me  reason  to  doubt 
a  nominee's  ability  or  willingness  to  do  so,  I  cannot  vote  to  confirm 
that  nominee,  no  matter  how  much  I  may  like  the  person.  In  this 
case,  I  happen  to  like  Justice  Barkett  very  much. 

Accordingly,  there  are  a  range  of  jurisprudential  issues  that  con- 
cern me.  A  nominee's  interpretation  of  the  equal  protection  clause 
and  the  due  process  clause  of  the  Constitution,  for  example,  are  in- 
dicators of  a  judge's  overall  judicial  philosophy,  and,  if  a  lower 
court  judge,  certainly  are  indicative  of  fidelity  to  precedent. 

A  nominee's  view  of  the  community's  ability  to  control  obscenity 
is  important.  A  nominee's  judicial  outlook  on  enforcement  of  the 
criminal  law  is  also  very  important,  especially  at  this  time  when 
this  is  probably  one  of  the  most  important  issues  in  America  today. 
I  think  it  has  been  a  very  important  issue  for  most  of  the  last  20 
years,  certainly  all  of  this  country's  existence,  but  especially  the 
last  20  years. 

Further,  let  me  emphasize  that,  with  regard  to  the  criminal  jus- 
tice arena,  I  am  concerned  not  just  with  the  death  penalty,  as  some 
people  seem  to  believe.  In  fact,  that  may  be,  as  important  as  it  is, 


353 

maybe  one  of  the  lesser  concerns  that  I  have.  I  am  concerned  with 
the  broad  array  of  criminal  law  issues. 

If  judicial  nominees,  for  example,  are  prone  to  invent  hyper-tech- 
nical rules  that  hamstring  law  enforcement  and  that  cripple  the 
ability  of  communities  to  police  themselves,  if  they  misuse  or  ignore 
relevant  precedent  or  the  statutes  themselves  in  a  manner  favoring 
criminal  defendants  and  convicts,  then  I  would  question  whether 
they  have  the  jurisprudential  outlook  necessary  to  be  a  Federal 
judge,  and  certainly  a  circuit  court  of  appeals  judge. 

Moreover,  let  me  note  that,  with  respect  to  the  death  penalty  it- 
self, I  am  not  only  concerned  about  a  nominee's  views  about  the 
constitutionality  of  the  death  penalty  in  theory,  nor  is  a  proper  in- 
quiry about  a  nominee's  judicial  outlook  in  this  area  ended  merely 
by  noting  that  the  nominee  has  upheld  the  death  penalty  in  some 
or  even  a  number  of  cases,  where  even  the  most  activist  of  judges 
cannot  avoid  its  imposition. 

If  a  nominee  exhibits  a  clear  tendency  to  strain  for  unconvincing 
escapes  from  the  imposition  of  the  death  penalty  in  cases  where  the 
death  penalty  is  in  fact  appropriate,  then  that  raises  concerns  in 
my  mind  about  the  nominee's  fidelity  to  the  law,  no  matter  how 
many  times  the  nominee  may  have  upheld  the  death  penalty  in 
other  cases. 

In  an  earlier  hearing,  I  closely  questioned  two  judicial  nominees, 
one  of  whom  I  later  supported  and  one  of  whom  I  opposed.  I  am 
looking  forward  to  the  answers  to  my  questions  and  will  weigh 
them,  of  course,  in  the  evaluation  of  the  nominee.  My  natural  tend- 
ency is  a  desire  to  support  the  nominee.  My  natural  tendency  is  a 
desire  to  support  the  nominee  of  the  President  of  the  United 
States.  He  won  the  election  and  he  ought  to  be  able  to  make  this 
choice.  Frankly,  I  think  my  record  here  on  the  committee  has 
shown  that  through  the  years. 

That  basically  would  be  my  feeling  this  morning,  Mr.  Chairman. 
I  appreciate  you  giving  me  this  time. 

The  Chairman.  As  a  former  chairman  of  this  committee.  Senator 
Thurmond  would  say  I  hope  you  follow  your  tendencies.  [Laughter.] 

Senator  Hatch.  I  probably  will. 

The  Chairman.  Senator  Moseley-Braun,  do  you  have  a  comment 
you  wish  to  make? 

OPEMNG  STATEMENT  OF  SENATOR  MOSELEY-BRAUN 

Senator  Moseley-Braun.  Well,  Mr.  Chairman,  I  had  not  ex- 
pected to  make  an  opening  statement,  except  to  welcome  Judge 
Barkett  to  this  panel.  I  look  forward  to  her  testimony.  Her  creden- 
tials seem  to  be  impeccable,  if  not  outstanding,  and  I  am  delighted, 
frankly,  if  I  may  add  a  personal  side,  to  see  a  woman  going  on  the 
Court  of  Appeals. 

The  Chairman.  Thank  you. 

Senator  Cohen,  I  am  sorry.  You  have  been  here  the  whole  time. 
You  were  here  before  everyone.  I  apologize. 

OPENING  STATEMENT  OF  SENATOR  COHEN 

Senator  Cohen.  Thank  you,  Mr.  Chairman. 

I  am  going  to  refuse  to  follow  stare  decisis  in  this  case.  I  am 
going  to  forego  the  precedent  of  making  a  long  statement.  I  wel- 


354 

come  the  Justice  and  look  forward  to  hearing  from  both  of  our  col- 
leagues about  your  character  and  qualifications  to  serve  on  the 
court. 

Thank  you  very  much. 

The  Chairman.  Thank  you. 

Judge  the  usual  precedent  is  only  the  chairman  and  the  ranking 
member  get  to  say  anything.  Maybe  we  will  reinforce  that. 

All  kidding  aside,  let  me  invite  our  friend,  a  former  Governor, 
the  senior  Senator,  Senator  Graham,  to  make  any  comments  he 
wishes  to,  and  then  we  will  ask  you  to  speak  to  us,  Connie. 

STATEMENT  OF  HON.  BOB  GRAHAM,  A  U.S.  SENATOR  FROM 

THE  STATE  OF  FLORffiA 

Senator  Graham.  Thank  you  very  much,  Mr.  Chairman,  Senator 
Hatch,  other  members  of  the  committee. 

We  appreciate  the  opportunity  to  be  here  today  and  to  introduce 
to  you  a  distinguished  Floridian,  Justice  Rosemary  Barkett,  a 
nominee  of  the  President  for  the  Eleventh  U.S.  Circuit  Court  of  Ap- 
peals. 

Mr.  Chairman,  in  your  opening  statement,  you  gave  a  substan- 
tial amount  of  the  history  of  Justice  Barkett,  which  is  also  con- 
tained in  my  statement.  So  in  an  effort  to  avoid  repetition,  I  would 
like  to  ask  that  my  full  statement  be  included  in  the  record. 

The  Chairman.  Without  objection,  it  will  be. 

Senator  Graham.  I  will  omit  those  parts  that  are  redundant  to 
what  the  Chairman  has  already  placed  in  the  record. 

I  would  like  also  to  indicate  that  the  Member  of  Congress  who 
represents  the  Tallahassee  area,  the  city  in  which  the  chief  justice 
now  lives  and  carrying  out  her  responsibility.  Congressman  Pete 
Peterson,  had  intended  to  be  with  us  today.  A  conflict  in  his  sched- 
ule in  the  House  prevented  him  from  doing  so,  and  he  asked  if  I 
would  convey  to  the  committee  his  strong  support  for  Justice 
Barkett. 

The  Chairman.  Thank  you.  It  will  be  noted. 

Senator  Graham.  Mr.  Chairman,  I  have  had  the  great  fortune  of 
knowing  Justice  Barkett  personally  for  more  than  15  years,  and  in 
that  time  I  have  been  profoundly  impressed  by  her  intelligence,  her 
compassion,  her  curiosity  of  mind,  her  humility  of  spirit. 

It  has  been  said  that  Justice  Barkett's  life  is  a  commentary  on 
the  American  dream.  You  have  outlined  previously  a  life  that 
stretches  from  a  child  bom  of  immigrant  parents  in  Mexico,  who 
came  to  the  Untied  States  while  she  was  still  a  young  girl,  who  has 
lived  through  many  experiences  that  have  given  her  an  unusual 
breadth  of  understanding  of  the  human  experience,  a  background 
which  she  has  applied  ably  throughout  her  judicial  career. 

She  also  comes  from  a  very  large  family.  There  are  approxi- 
mately 35  members  of  her  family  who  join  us  today.  I  would  like 
to  ask  if  they  would  stand. 

The  Chairman.  Maybe  just  ask  the  ones  who  are  not  members 
of  her  family.  [Laughter.] 

Senator  Graham.  That  might  result  in  less  disruption,  Mr. 
Chairman.  But  I  wonder  if  I  could  ask  the  members  of  her  family 
to  stand. 

The  Chairman.  We  would  be  honored  to  meet  the  family. 


355 

Senator  COHEN.  Is  this  just  the  immediate  family?  [Laughter.] 

Senator  Graham.  This  is  the  immediate  family. 

Just  to  mention  her  most  immediate  members  of  the  family  who 
are  here,  her  brother  Assad  Barkett,  Jr.,  of  Homestead,  FL;  her  sis- 
ters, Irma  Elder  of  Detroit;  Chati  Barkett  of  Homestead;  and  Car- 
men Doumar  of  Fort  Lauderdale  are  here.  Unfortunately,  Justice 
Barkett's  parents  are  not  among  the  family  here  today.  Her  aged 
mother,  who  I  understand  is  about  to  celebrate  her  75th  wedding 
anniversary,  is  ill,  and  her  husband  is  at  her  side.  But  this  is  cer- 
tainly one  of  the  proudest  moments  for  the  parents  and  all  of  the 
members  of  Justice  Barkett's  family. 

As  you  mentioned,  Mr.  Chairman,  I  had  the  privilege  on  three 
occasions  to  appoint  Justice  Barkett  to  positions  of  increasing  re- 
sponsibility in  the  Florida  judiciary. 

I  think  one  of  the  impressive  things  about  her  judicial  service  is 
that  shortly  after  I  had  appointed  her  to  a  position,  she  was  then 
selected  by  her  peers  to  be  their  leader.  For  instance,  I  appointed 
her  in  1979  to  be  a  trial  judge  on  the  fifteenth  judicial  circuit, 
which  is  primarily  in  the  Palm  Beach  County  area.  She  was  soon 
elected  as  the  chief  judge  by  her  peers.  She  has  now  been  elected 
by  her  peers  on  the  Florida  Supreme  Court  to  be  not  only  the  first 
woman  on  the  court  in  our  State's  history,  but  the  first  chief  justice 
in  our  State  system. 

As  you  indicated,  Justice  Barkett  has  received  a  number  of 
awards  and  recognitions,  including  eight  honorary  doctorates,  nu- 
merous other  awards,  including  the  Lifetime  Achievement  Award 
presented  by  the  Latin  Business  and  Professional  Women  and  the 
Hannah  G.  Solomon  Award  presented  by  the  National  Council  of 
Jewish  Women. 

As  you  indicated,  Mr.  Chairman,  the  Academy  of  Florida  Trial 
Lawyers  has  established  a  Rosemary  Barkett  Award,  which  each 
year  recognizes  a  person  who  has  demonstrated  outstanding  com- 
mitment to  equal  justice  under  law.  I  might  say  that  the  first  recip- 
ient of  that  award  was  Congresswoman  Carrie  Meek,  who  you 
know  well  and  can  evaluate  how  significant  it  is  to  have  a  person 
of  her  quality  be  recognized  by  receiving  an  award  named  for  Jus- 
tice Barkett. 

Justice  Barkett  has  served  on  numerous  commissions  and  task 
forces,  including  the  American  Bar  Association's  Steering  Commit- 
tee on  Unmet  Legal  Needs  of  Children.  She  has  been  asked  by  the 
Florida  Legislature  to  chair  several  major  commissions,  including 
one  to  reform  guardianship  law,  another  to  study  status  and  needs 
of  Florida's  welfare  children. 

Throughout  her  career,  Justice  Barkett  has  displayed  not  only  a 
remarkable  combination  of  intelligence  and  integrity,  but  also  an 
uncompromising  respect  for  the  law.  In  Florida,  she  is  respected 
statewide  as  a  judge  who  treats  all  people  with  equal  dignity,  with- 
out arrogance  or  condescension. 

Mr.  Chairman,  you  pointed  out  a  significant  fact,  and  that  is 
that,  under  Florida  law,  every  6  years  members  of  the  Florida  Su- 
preme Court  undergo  a  retention  campaign  in  which  their  names 
are  placed  before  the  people.  They  do  not  have  an  opponent  other 
than  the  record  that  they  have  compiled  as  a  member  of  the  court. 


356 

In  November  1992,  Justice  Barkett  was  engaged  in  such  a  reten- 
tion campaign.  Many  of  the  issues  that  I  anticipate  will  be  raised 
during  this  hearing  were  the  focal  points  of  that  campaign.  The 
people  of  Florida,  a  State  which  is  very  committed  to  effective 
criminal  justice  and  a  State  that  takes  the  attitudes  of  its  judges 
very  seriously 

The  Chairman.  I  would  say  conservative  on  this  issue. 

Senator  Graham  [continuing].  Had  an  opportunity  to  hear  all  of 
the  commentary  and  to  evaluate  Justice  Barkett.  After  that  cam- 
paign, 61  percent  of  the  people  of  Florida  determined  that  it  was 
in  their  interest  and  in  the  interest  of  the  citizens  of  Florida  to  re- 
tain Justice  Barkett.  To  me,  that  is  one  of  the  most  persuasive 
statements  of  her  judicial  qualifications  and  the  public  confidence 
in  her  integrity. 

Mr.  Chairman,  I  have  a  package  of  25  editorials  and  other  arti- 
cles supporting  Justice  Barkett.  Every  major  newspaper  in  Florida, 
people  who  know  her  well,  have  endorsed  her  nomination.  I  would 
like  to  include  these  articles  in  the  record. 

The  Chairman.  Without  objection,  they  will  be  included. 

[For  the  articles  referred  to,  see  Submissions  for  the  Record  fol- 
lowing this  hearing.] 

Senator  Graham.  As  I  say,  I  am  aware  of  the  issues  that  have 
been  raised  about  Justice  Barkett's  judicial  philosophy.  I  find  it 
particularly  difficult  to  understand  the  allegation  that  she  has  not 
carried  out  her  judicial  responsibility  under  Florida's  death  pen- 
alty. 

Like  the  chairman  and  most  members  of  this  committee,  I  sup- 
port the  death  penalty.  As  Governor,  I  signed  over  100  death  war- 
rants. I  was  concerned  with  the  judiciary  in  our  State,  which  would 
have  a  responsibility  in  carrying  out  that  law. 

Chief  Justice  Barkett  has  demonstrated  in  more  than  200  cases 
her  ability  to  enforce  the  death  penalty.  Justice  Barkett  will  fairly 
carry  out  the  law.  Justice  Barkett's  commitment  to  the  law  has 
made  her  one  of  Florida's  most  competent  and  trusted  jurists.  I  am 
confident  that  those  characteristics  will  make  her  a  superb  addition 
to  the  Eleventh  Circuit  Court  of  Appeals. 

Thank  you,  Mr.  Chairman. 

[The  prepared  statement  of  Senator  Graham  follows:] 

Prepared  Statement  of  Senator  Graham 

Mr.  Chairman,  I  am  delighted  to  be  here  today  to  introduce  Chief  Justice  Rose- 
maiy  Barkett,  as  a  nominee  for  the  11th  U.S.  Circuit  Court  of  Appeals. 

I  have  had  the  great  fortune  of  knowing  Justice  Barkett  personally  for  more  than 
15  years,  and  in  that  time,  I  have  been  awed  by  her  inteUigence,  her  compassion, 
her  curiosity  of  mind  and  her  humility  of  spirit. 

To  quote  the  New  Yorker  Magazine,  Justice  Barkett's  life  is  a  gloss  on  the  Amer- 
ican dream. 

She  was  bom  in  Mexico  in  1939.  When  she  was  five,  her  family  gave  up  a  pros- 
perous business,  emigrated  to  the  United  States  and  settled  in  Miami  to  begin  a 
new  life. 

The  Barkett  family  has  always  been  very  large  and  very  close.  As  you  can  see. 
Justice  Barkett  has  a  lot  of  proud  family  members  and  friends. 

Among  the  26  relatives  who  came  today  to  be  with  Justice  Barkett  are  her  brother 
Assad  Barkett,  Jr.  of  Homestead,  Florida;  and  her  sisters,  Irma  Elder  of  Detroit, 
Michigan;  Chati  Barkett  of  Homestead;  and  Carmen  Doumar  of  Fort  Lauderdale. 

Unfortunately,  Justice  Barkett's  parents  couldn't  make  it  from  Florida  today.  Her 
mother  is  ill  and  her  father  wanted  to  stay  by  his  wife's  side.  But  this  is  certainly 
one  of  the  proudest  days  in  the  lives  of  these  two  immigrants. 


357 

Justice  Barkett  grew  up  in  Miami.  After  graduating  from  high  school,  she  joined 
a  convent  and  worked  as  an  elementary  and  high  school  teacher  for  several  years. 

After  teaching  school  for  several  years,  she  graduated  summa  cum  laude  from 
Spring  Hill  College  in  Mobile,  Alabama.  Then,  after  leaving  the  convent,  she  at- 
tended the  University  of  Florida  Law  School,  where  she  graduated  near  the  top  of 
her  class  in  1970. 

Justice  Barkett  worked  for  several  years  as  an  associate  and  then  a  partner  at 
Parish  &  Parish,  a  West  Palm  Beach  trial  law  firm.  She  also  worked  for  a  year  as 
a  sole  practitioner  in  West  Palm  Beach. 

In  1979,  while  serving  as  governor,  I  appointed  her  as  Trial  Judge  for  Florida's 
Fifteenth  Judicial  Circuit,  where  she  impressed  her  peers,  who  elected  her  chief 
judge  of  the  circuit. 

She  served  in  that  position  with  distinction  until  1984,  when  I  appointed  her  Ap- 
pellate Judge  for  Florida's  Fourth  District  Court  of  Appeals. 

In  1985,  I  appointed  Justice  Barkett  to  the  Florida  Supreme  Court.  She  was  the 
first  woman  to  serve  on  that  court  and  was  again  chosen  by  her  peers,  this  time 
to  be  Chief  Justice  in  July  1992. 

Justice  Barkett  has  received  eight  honorary  doctorates  and  numerous  other 
awards,  including  the  Lifetime  Achievement  Award  presented  by  Latin  Business 
and  Professional  Women  and  the  Hannah  G.  Solomond  Award,  presented  by  the  Na- 
tional Council  of  Jewish  Women. 

The  Academy  of  Florida  Trial  Lawyers  has  established  a  "Rosemary  Barkett 
Award,"  which  it  presents  each  year  to  "a  person  who  has  demonstrated  outstanding 
commitment  to  equal  justice  under  the  law."  The  first  recipient  of  that  award  was 
Congresswoman  Carrie  Meek. 

Justice  Barkett  has  served  on  numerous  commissions  and  task  forces,  including 
the  American  Bar  Association  Steering  Committee  on  the  Unmet  Legal  Needs  of 
Children.  She  has  also  been  asked  by  the  Florida  legislature  to  chair  several  major 
commissions,  including  one  to  reform  guardianship  law  and  another  to  study  the 
status  and  needs  of  Florida's  welfare  children. 

Throughout  her  career,  Justice  Barkett  has  displayed  not  only  a  remarkable  com- 
bination of  intelligence  and  integrity  but  also  an  uncompromising  respect  for  the 
law.  In  Florida,  she  is  respected  statewide  as  a  judge  who  treats  all  people  with 
equal  dignity  and  without  arrogance  or  condescension. 

Every  six  years,  Florida's  Supreme  Court  members  undergo  a  retention  campaign. 
In  November  1992,  Justice  Barkett  retained  her  seat  by  a  margin  of  more  than  60 
percent.  That  is  one  of  the  most  persuasive  statements  of  her  judicial  qualifications 
and  public  confidence  in  her  integrity. 

Mr.  Chairman,  this  is  a  package  of  25  editorials  and  other  articles  supporting  Jus- 
tice Barkett.  Every  major  newspaper  in  Florida  has  endorsed  her  for  this  judgeship. 
I  would  like  to  include  these  articles  in  the  hearing  record. 

I  am  aware  of  issues  that  have  been  raised  aoout  Justice  Barkett's  judicial  philos- 
ophy. I  find  it  particularly  difficult  to  understand  the  allegation  that  she  has  not 
carried  out  her  judicial  responsibility  under  Florida's  death  penalty.  The  facts  are 
Chief  Justice  Barkett  has  demonstrated  in  more  than  200  cases  her  ability  to  en- 
force the  death  penalty.  Justice  Barkett  will  carry  out  the  law. 

Justice  Barkett's  commitment  to  the  law  has  made  her  one  of  Florida's  most  com- 
petent and  popular  jurists.  And  I  am  confident  that  those  characteristics  will  make 
her  a  superb  addition  to  the  11th  Circuit  Court  of  Appeals. 

The  Chairman.  Now  we  will  hear  from  a  good  friend  of  this  com- 
mittee and  a  fellow  who  we  worked  with  very  closely  in  the  last 
6  years  in  judicial  appointments,  Senator  Connie  Mack. 

Welcome,  Connie. 

STATEMENT  OF  HON.  CONNIE  MACK,  A  U.S.  SENATOR  FROM 

THE  STATE  OF  FLORIDA 

Senator  Mack.  Thank  you,  Mr.  Chairman. 

I  appreciate  those  comments.  There  was  a  lot  of  action  and  activ- 
ity with  respect  to  Federal  judges  in  the  State  of  Florida  in  the 
first  4  years,  and,  as  I  have  expressed  on  many  occasions,  I  appre- 
ciate this  committee's  responsiveness  to  the  needs  of  our  State. 

Mr.  Chairman  and  members  of  the  committee,  today  I  am 
pleased  to  join  Senator  Graham  in  introducing  a  fellow  Floridian, 


358 

Chief  Justice  Rosemary  Barkett,  as  nominee  for  a  seat  on  the  Elev- 
enth Circuit  Court  of  Appeals. 

Last  fall,  I  undertook  an  in-depth  evaluation  of  Justice  Barkett's 
qualifications  for  this  position,  because,  frankly,  with  the  exception 
I  think  of  maybe  one  occasion,  we  had  not  really  spent  any  time 
together,  and  I  was  not  readly  aware  of  her  background. 

As  a  result,  I  spoke  with  a  number  of  respected  Florida  attor- 
neys, both  Democrats  and  Republicans  alike.  I  reviewed  her  deci- 
sions and  met  with  the  Chief  Justice  at  length  on  two  separate  oc- 
casions to  discuss  her  judicial  decisions  and  the  nomination. 

As  I  said  when  I  announced  my  support  for  the  chief  justice,  I 
found  her  to  be  a  decent,  caring,  experienced,  and  intelligent  jurist, 
whose  personality  undoubtedly  has  been  forged  from  her  life's  expe- 
riences. 

As  Senator  Graham  and  the  Chairman  have  indicated.  Justice 
Barkett  has  led  a  remarkable  life.  She  was  bom  in  a  small  town 
in  Mexico,  moved  to  Miami  at  a  young  age,  entered  a  Catholic  con- 
vent at  the  age  of  17,  and  became  a  U.S.  citizen  at  19.  She  later 
graduated  from  the  University  of  Florida's  College  of  Law  and 
began  a  distinguished  career. 

Justice  Barkett  and  I  strongly  differ  on  some  subjects.  I  cannot 
deny  that.  I  believe  that  people  can  have  strong  intellectual  dif- 
ferences, but  both  opinions  can  be  built  on  reasonable  foundations. 
Even  though  I  disagree  with  some  of  the  Chief  Justice's  conclu- 
sions, I  respect  her  judgment  and  her  integrity. 

As  the  committee  reviews  the  nomination  of  Justice  Barkett,  I 
ask  that  it  consider  these  questions:  Is  she  a  capable  jurist?  The 
answer,  in  my  opinion,  is  yes.  Do  her  judicial  decisions  fall  within 
reasonable  philosophical  bounds?  Yes,  they  do.  Is  she  a  judge  who 
has  represented  the  people  of  my  State  on  our  supreme  court  with 
integrity  and  honor?  The  answer  again  is  yes. 

I  believe  Justice  Barkett  will  bring  to  the  eleventh  circuit  a  dem- 
onstrated capacity  for  intellectual  curiosity,  for  fair-minded  and  ro- 
bust debate,  and  for  honesty,  all  of  which  will  serve  our  Federal  ju- 
diciary well.  Chief  Justice  Barkett  deserves  to  be  confirmed.  I  ask 
the  committee  to  move  quickly  on  the  nomination  to  fill  this  va- 
cancy on  the  Eleventh  Circuit  Court  of  Appeals. 

Thank  you,  Mr.  Chairman. 

The  Chairman.  Thank  you  very  much. 

I  might  add  I  appreciate  the  way  in  which  you  have  handled  this 
nomination.  Senator.  You  were  forthright  with  the  committee.  You 
did  not  know  enough  about  the  Justice  and  you  wanted  to  have 
time  to  evaluate  whether  you  were  for  or  against.  Occasionally, 
Senators  in  both  parties  will  say  things  like  that  to  me,  and  I  think 
maybe  their  real  reason  is  to  keep  things  from  moving  forward.  In 
your  case,  as  you  recall,  neither  of  us  even  questioned  your  motiva- 
tion and  you  did  your  checking.  Had  you  come  back  and  said  you 
were  opposed  or  supportive,  it  would  not  have  mattered,  because 
you  would  have  been  consistent  with  what  you  said,  you  wanted  to 
take  a  look.  We  appreciate  that.  You  always  deal  with  our  commit- 
tee that  way  and  we  appreciate  it. 

Judge,  I  am  going  to  ask  you  to  stand  and  be  sworn  and  invite 
you  to  make  any  statement  you  want,  and  then  we  will  begin  the 
questioning. 


359 

Do  you  swear  that  the  testimony  you  are  about  to  give  will  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  so  help  you, 
God? 

Justice  Barkett.  I  do. 

TESTIMONY  OF  HON.  ROSEMARY  BARKETT,  OF  FLORIDA,  TO 
BE  A  U.S.  CIRCUIT  JUDGE  FOR  THE  ELEVENTH  CIRCUIT 

The  Chairman.  Welcome,  Judge,  and  the  floor  is  yours,  if  you 
wish  to  make  any  statement.  My  colleagues,  as  you  know.  Justice, 
they  have  a  thousand  other  things  they  have  got  to  do  and  other 
hearings,  and  so  we  appreciate  them  being  here  and  that  is  why 
they  are  leaving. 

Justice  Barkett. 

Justice  Barkett.  Thank  you  very  much.  Senator. 

I  do  not  have  an  opening  statement,  but  I  would  like  to  just  say 
one  or  two  things  and  introduce  the  people  who  are  here  who  have 
gone  to  a  great  deal  of  trouble  to  be  here. 

I  have  been  blessed  in  two  major  ways.  As  you  have  heard,  we 
are  members  of  a  family  who  came  to  this  country  and  have  been 
extraordinarily  blessed  by  the  opportunities  that  it  has  provided 
not  just  to  me.  You  all  talk  about  a  remarkable  life,  but  if  you  had 
the  opportunity  to  hear  the  stories  of  the  people  or  individuals  who 
are  behind  me,  you  would  be  probably  doubly  or  triply  impressed. 

There  are  two  members  of  my  family  who  are  not  here,  my  par- 
ents. Once  again,  if  you  thought  any  of  our  lives  are  remarkable, 
I  think  hearing  the  factors  involved  in  being  double  immigrants, 
having  been  bom  in  Syria  and  immigrated  in  their  youth  with  one 
or  two  children 

The  Chairman.  What  was  your  first  language  when  you  came  to 

Justice  Barkett.  Spanish,  Senator.  My  parents  were  bom  in 
Syria,  immigrated  when  they  were  in  their  twenties,  with  one  or 
two  children,  to  Mexico.  They  spent  some  20-plus  years,  25  years 
in  Mexico,  where  I  was  born  and  many  of  my  sisters  were  born, 
and  then  immigrated  again  after  the  Second  World  War.  So  their 
life  is  truly  remarkable.  My  father  is  94,  and  my  mother  is  88. 
They  would  have  been  here,  had  the  cold  weather  and  my  mother's 
failing  health  not  precluded  it,  and  then  I  surely  would  have  wor- 
ried about  any  hostile  question  that  may  have  been  asked,  I  have 
to  tell  you. 

Senator  Hatch.  You  think  you  would  worry,  you  can  imagine 
how  we  would  feel.  [Laughter.] 

Justice  Barkett.  In  March,  they  will  be  celebrating  their  75th 
wedding  anniversary,  and  I  think  their  story  is  ten  times  more  re- 
markable than  anybody  that  is  here. 

My  father  is  one  of  many  brothers  and  cousins  who  immigrated 
here,  and  their  descendants  are  represented  in  the  people  who  are 
here  in  this  room.  We  began  approximately  26  years  ago  to  have 
a  family  reunion  in  Vero  Beach,  FL,  which  is  in  the  middle  of  the 
State.  Many  of  my  family  members  are  from  Jacksonville,  and 
many  are  from  Miami.  We  meet  in  the  middle,  and  there  has  not 
been  a  year,  I  do  not  think,  where  the  numbers  of  the  immediate 
family,  my  father's  brothers  and  his  cousins  and  their  descendants, 
do  not  number  in  excess  of  100. 


360 

Over  the  26  years  that  we  have  been  doing  this,  we  have  become 
much  closer  than  most  famihes.  Our  cousins  have  blended  to  be 
extra  sisters  and  brothers,  our  aunts  and  uncles  are  like  surrogate 
parents  who  feel  the  great  responsibility  of  correcting  you  when 
your  parents  are  not  around,  and  many  times  when  they  are 
around,  so  you  are  corrected  six  or  seven  times  for  the  same  of- 
fense. 

The  Chairman.  I  know  the  feeling. 

Justice  Barkett.  I  have  friend  here.  In  my  family,  there  are  not 
outsiders.  My  family  accepts  our  friends,  those  of  all  of  us  as  part 
of  the  family,  so  that  everybody  that  is  here  to  me  is  a  member  of 
my  family. 

I  also  have  to  say  one  other  thing  before  I  just  read  their  names 
to  you,  because  they  have  made  a  great  effort  to  come  from  Florida 
in  the  winter,  and  that  is,  lest  the  committee  think  that  its  impor- 
tance is  exaggerated,  this  family  uses  every — we  do  this  for  gradua- 
tions, birthdays  and  every  other  event,  where 

The  Chairman.  Use  up  all  those  frequent-flyer  tickets? 

Justice  Barkett.  Well,  we  come  together  every  time  an  occasion 
even  remotely  warrants  it,  where  there  is  any  pain  that  might 
occur  or  any  celebration.  I  know  that  everybody  hopes  it  is  going 
to  be  the  latter  in  this  instance.  So  I  appreciate  your  letting  me 
take  a  couple  of  minutes  to  read  the  names  of  the  members  of  my 
family  who  have  made  the  effort. 

People  ask  you  if  you  are  nervous  here,  and  I  am  not.  The  only 
emotion  that  I  feel  today  is  just  a  tremendous  gratitude  for  the  peo- 
ple that  are  here. 

The  Chairman.  Take  your  time.  Justice. 

Justice  Barkett.  It  is  just  really  neat  that  they  did  this.  My  sis- 
ters, of  course,  Irma  Elder  and  Chati  and  Carmen  Doumar  have 
been  introduced,  as  well  as  my  brother  Assad  Barkett.  I  should  not 
tell  you  this,  but  he  is  approximately  20  years  or  so  older  than  I 
am,  and  his  children  are  sort  of  like  my  brothers  and  sisters,  but 
his  wife,  who  is  also  not  here,  is  helping  take  care  of  my  parents 
and  is  not  well  enough  to  have  made  the  trip,  is  as  much  a  sister 
as  any  of  my  sisters  have  been,  and  I  wish  that  she  were  here. 

I  do  not  want  to  take  up  a  lot  of  time,  but  I  just  feel  like  I  need 
to  read  their  names. 

The  Chairman.  Just  take  your  time.  This  is  one  shot,  just  the 
one  shot  you  have. 

Justice  Barkett.  I  will  not  bore  you  with  how  they  are  related, 
but  let  me  just  go  down  the  list  and  say  that  Steve  Doumar  is  here, 
Johnny  Barkett  and  Sybill  his  wife,  my  niece  Mansura  Crump,  my 
cousins  Georgia  Abdelnour  and  Mary  Barket  and  Julia  Barket,  my 
aunt  Lil  Barket,  Frances  Joseph  and  Louise  Korey  and  Neddie 
Lewis,  Richard  Crump,  Robin  Marques  and  Michael  Marques — I 
hope  little  Michael  made  it — Lori  Nation,  and  my  grand-nephews, 
we  are  like  three  or  four  generations,  my  nephew  Johnny's  children 
are  here,  Johnny  Barkett  and  Dee,  and  I  guess  Leslie  got  to  stay 
home. 

The  Chairman.  Who  is  the  youngest  one  in  the  group?  There  you 
go.  What  is  your  name?  OK,  John.  In  these  hearings,  the  youngest 
member  of  the  family  in  attendance  has  the  free  run  of  this  place. 
Seriously,  if  you  want  to  get  up  and  head  back  here,  I  think  we 


361 

have  got  some  candy  and  stuff  back  here.  You  can  do  everything 
but  question,  and  occasionally  we  allow  that  to  happen.  [Laughter.] 

Senator  Hatch.  Yes,  we  will  consider  that. 

Justice  Barkett.  Thank  you,  Senator. 

Susan  Albert,  Kristie  Milo,  Saralyn  Korey,  Katie  Korey,  Dee 
Barkett,  John  David  Baxton,  Fr.  Michael  Soukar.  I  have  to  then  go 
into  my  extended  family.  I  could  not  be  more  pleased  to  have  mem- 
bers of  my  staif  who  are  here:  Chet  Kaufman,  Professor  Steve  Guy, 
from  Florida  State  University's  College  of  Law.  I  almost  said  the 
wrong  name. 

The  Chairman.  I  understand  how  that  could  be  dangerous  in 

Florida. 

Justice  Barkett.  Yes,  in  my  State,  especially. 

Debbie  Hulls,  who  is  my  assistant  judicial  assistant,  who  has  be- 
come like  another  sister  to  me;  my  friends  Gail  Nelson,  Alexander 
DeBlassio,  Jamie  Kevees,  Janet  Studley  should  be  here,  Doug 
Hughs,  Kim  Meyers,  Scott  Rogers,  Nina  Weinstein,  Gail  Nelson.  Of 
course,  I  could  not  be  more  delighted  to  have  with  me,  who  has 
been  of  enormous  support,  Chesterfield  Smith,  whose  example  has 
been 

The  Chairman.  We  all  know  Chesterfield.  Welcome,  Chesterfield. 
It  is  good  to  have  you  back. 

Senator  Cohen.  Mr.  Chairman,  could  I  inquire,  are  those  books 
the  family  genealogy  that  you  have  in  front? 

Justice  Barkett.  No,  sir.  They  would  be  much  more  extensive. 

Senator  Moseley-Braun.  Actually,  I  was  going  to  ask  the  Chair- 
man if  he  would  inquire  which  relatives  are  from  Illinois. 

The  Chairman.  There  is  bound  to  be  someone  from  Illinois. 

Justice  Barkett.  I  do.  Lori,  where  are  you? 

The  Chairman.  There  you  go.  Would  you  report  after  school, 
please?  [Laughter.] 

Justice  Barkett.  Thank  you,  Senator.  I  just  want  to  say  thank 
you  to  all  of  them  for  coming.  Everything  that  I  have  done  right 
in  my  life  has  been  an  emulation  of  the  things  they  taught  me,  and 
whatever  I  have  done  wrong  I  take  full  responsibility  for. 

Thank  you  for  your  patience  in  letting  me  do  that. 

The  Chairman.  It  is  a  great  honor.  One  of  the  things  that  I  think 
we  so  seldom  pay  attention  to,  we  are  here  in  these  halls  and  in 
this  great  institution,  which  is  not  because  on  occasion  of  our  con- 
duct and  because  on  occasion  of  the  nature  of  the  system  is  not  al- 
ways looked  to  as  such  a  great  institution,  but  it  truly  is  a  phe- 
nomenal honor  for  anyone  to  be  nominated  to  the  Court  of  Appeals, 
and  this  is  an  occasion  that  warrants  your  presence. 

I  hope  those  of  you  who  do  not  know  Washington  well,  I  know 
you  are  anxious  to  go  back  because  of  the  weather,  but  I  hope  you 
get  a  chance  to  actually  feel  the  ambience  of  this  great  city  and 
these  buildings  and  these  halls  that  are  yours.  It  is  worth  seeing. 
It  is  worth  taking  the  time.  It  is  a  reflection  of  the  great  institu- 
tions that  were  wrought  a  long  time  ago. 

I  have  only  one  more  question  relating  to  genealogy.  Of  the  16, 
what  number  are  you? 

Justice  Barkett.  I  am  second  from  the  bottom.  Senator. 

The  Chairman.  Second  from  the  bottom.  One  last  question,  the 
only  other  question  I  will  ask  you  about  your  previous  occupations: 


362 

When  you  were  a  nun  in  the  Sisters  of  St.  Joseph,  were  you  issued 
a  clicker? 

Justice  Barkett.  No,  Senator,  just  a  ruler  to  rap  appropriate 
knuckles.  I  hope  it  will  not  be  necessary  this  morning.  [Laughter.] 

The  Chairman.  My  ears  were  never  this  long  before  I  went  to 
Catholic  school,  and  my  small  hands  were  in  fact  not  as  rough  on 
the  back  before  I  attended  Catholic  school,  so  I  understand. 

If  I  ask  you  anything  or  if  I — the  press  will  know  I  have  had  a 
flashback,  if  I  start  saying,  "yes,  sister,"  or  "no,  sister"  to  your  re- 
sponses, but  I  will  try  not  to  do  that.  I  will  try  to  remember  my 
role. 

Justice  Barkett.  Senator,  there  were,  I  am  told,  some  judges  on 
the  fifteenth  judicial  circuit  when  I  was  chief  judge  there  who 
sometimes  had  the  tendency  to  refer  to  me  as  "mother  superior." 
[Laughter.] 

The  Chairman.  Let  me  get  serious  for  a  moment  here.  Justice 
Barkett,  in  your  8  years  on  the  Supreme  Court,  you  have  upheld 
the  death  sentence  in  more  than  200  cases.  As  our  research  shows, 
200  times  death  cases  have  come  up  to  you  involving  roughly  150 
defendants.  Is  that  correct? 

Justice  Barkett.  I  am  told  that  the  numbers  are  closely  to  ap- 
proximately 275  or  276  times  that  there  has  been  an  affirmance  of 
the  death  penalty  in  which  I  have  voted  with  the  majority.  If  you 
are  counting  only  individuals,  rather  than  double  cases,  it  is  some- 
where in  the  neighborhood  of  150  defendants  to  200.  That  is  a  dif- 
ficult number  to  ascertain,  because  a  lot  of  defendants  have  the 
same  name,  but  somewhere  in  the  neighborhood  of  150  to  200  de- 
fendants, I  believe. 

The  Chairman.  So  Florida  has  a  death  penalty  statute,  correct? 

Justice  Barkett.  Yes,  it  does,  Senator. 

The  Chairman.  Can  you  tell  me  whether  or  not  there  is  discre- 
tion on  the  Florida  statute  for  a  judge  to  make  a  judgment,  a  trial 
court  judge  to  impose  the  death  penalty  where  the  jury  may  come 
back  with  a  life  sentence  after  conviction?  I  know  you  are  not  now 
a  trial  court  judge. 

Justice  Barkett.  Yes,  Senator. 

The  Chairman.  But  tell  me  what  discretion  a  trial  court  judge 
in  Florida  has  relative  to  the  death  penalty  as  a  sentence. 

Justice  Barkett.  In  the  Florida  statutory  scheme,  the  jury 
makes  a  recommendation  to  the  judge  and  the  judge  then  has  the 
option  of  following  the  recommendation  of  life  imprisonment  or  of 
imposing  the  death  penalty. 

The  Chairman.  Even  if  the  jury  does  not  recommend  death? 

Justice  Barkett.  Yes,  Senator.  But  prior  to  my  joining  the  court, 
the  court  had  addressed  the  question  of  under  what  standards  can 
a  judge  overrule  a  jury's  recommendation  of  life,  and  the  standard 
is  a  very  stringent  standard,  and  the  cases  interpreting  that  stand- 
ard are  also  very  stringent,  so  that  the  court  in  a  case  called  Tetter 
V.  State  has  said  that  only  when  no  reasonable  juror  could  possibly 
have  imposed  the  death  penalty,  may  a  trial  court  judge  reverse 
the  jury  recommendation  of  life  and  impose  a  death  sentence,  and 
that  has  been  the  continuing  law  of  my  State  on  that  question. 

The  Chairman.  Reasonable  judges,  I  suspect,  as  reasonable 
members  of  the  Senate,  can  disagree  with  some  of  the  judgments 


363 

that  you  have  made  or  not  made  in  those  275  death  cases.  As  I  un- 
derstand, among  the  more  than  600  death  penalty  appeals  you 
have  confronted  in  the  Florida  State  Supreme  Court,  there  may  be 
cases  in  which  you  have  upheld  the  death  penalty  that  I  or  others 
here  may  not  have,  and,  likewise,  there  may  be  cases  in  which  you 
have  voted  to  reverse  the  imposition  of  the  death  penalty,  imposing 
life  instead  of  death  which  may  be  disagreed  with  by  members  of 
the  committee,  including  me. 

I  am  not  sure,  quite  frankly,  there  is  much  value  in  pointing  out 
individual  cases,  so  long  as  the  overall  record  demonstrates  willing- 
ness to  apply  the  law.  Now,  in  your  approach  to  judging,  how  do 
you  see  your  job  of  interpreting  our  Constitution  and  the  laws  of 
the  State  of  Florida  and  reviewing  their  application  to  the  facts? 
That  seems  to  me  to  be  the  question  that  I  want  to  know  about 
how  you  approach  the  business  of  judging. 

In  that  regard,  I  would  like  to  discuss  with  you  three  areas: 
First,  the  difference  between  your  role  as  a  State  Supreme  Court 
Justice  and  your  role  on  the  court  of  appeals;  and,  second,  the  role 
of  precedent  in  judging  as  you  view  it;  and,  third,  the  respective 
role  of  courts  and  legislatures  in  determining  the  meaning  of  the 
statute. 

You  currently  serve  as  Chief  Justice  of  the  State  of  Florida,  the 
highest  court  in  the  State  of  Florida,  the  ultimate  arbiter  of  dis- 
putes arising  under  the  State's  Constitution  and  laws.  I  have  re- 
viewed many,  though  certainly  not  all,  of  the  3,000  opinions  you 
have  written  personally,  and  the  12,000  cases  in  which  you  have 
participated  during  your  8  years  on  the  court.  I  might  add  that  you 
have  kept  our  investigative  staff  very  busy,  because  of  the  number 
of  cases  that  you  have  written  and/or  participated  in. 

In  many  of  those  cases,  litigants  invoked  provisions  of  both  the 
Federal  and  State  Constitutions  and  State  laws.  How  would  you 
compare  and  contrast  your  role  as  a  Chief  Justice  of  the  State  su- 
preme court  with  the  role  you  will  assume,  if  you  are  confirmed, 
on  the  Eleventh  Circuit  Court  of  Appeals? 

Justice  Barkett.  Senator,  as  a  member  of  the  court  of  last  resort 
in  a  State,  it  is  the  State  supreme  court's  job  to  look  and  act,  in 
our  State,  Florida,  within  the  context  of  Florida's  Constitution  and 
Florida's  law  and  Florida  precedent,  which  in  some  instances  may 
be  different  from  that  of  the  Federal  precedent  or  the  Federal  Con- 
stitution. We,  of  course,  must  apply  the  Federal  Constitution,  but 
State  Constitutions  may  have  more  protections  than  the  Federal 
Constitution,  and  it  is  in  the  context  of  Florida  law  where  a  Florida 
Supreme  Court  justice  operates. 

In  the  Federal  system,  of  course,  you  would  not  be  looking  at  the 
case  in  front  of  you  within  the  context  of  the  ambit  of  the  Florida 
Constitution  or  the  Florida  laws.  You  will,  of  course,  be  looking 
only  to  the  Federal  laws  and  be  guided  by  the  precedent  that  the 
U.S.  Supreme  Court  has  established,  and  I  of  course  will  do  that. 

The  Chairman.  When  your  court,  the  Supreme  Court  of  the  State 
of  Florida,  construes  State  statutory  or  constitutional  provisions, 
are  you  bound  by  the  precedents  of  the  U.S.  Supreme  Court? 

Justice  Barkett.  We,  of  course,  are,  but  we  may  have  additional 
requirements  under  Florida's  Constitution. 


364 

The  Chairman.  I  understand  what  you  are  saying,  but,  for  the 
record,  give  me  an  example,  if  you  can  think  of  one,  where  the  Flor- 
ida State  Constitution  has  an  additional  safeguard  built  in. 

Justice  Barkett.  For  example,  the  voters  in  my  State  very  re- 
cently passed  a  constitutional  express  right  of  privacy  which  is  de- 
lineated just  exactly  that  way.  The  people  of  the  State  of  Florida 
have  a  right  of  privacy,  the  people  of  the  State  of  Florida  have  a 
right  to  be  let  alone  and 

The  Chairman.  So  you  do  not  have  to  worry  about  unenumerated 
right  of  privacy  in  the  State  Constitution? 

Justice  Barkett.  The  people  of  the  State  of  Florida  enumerated 
their  right  of  privacy  very  explicitly,  so  there  would  be  no  question. 
Senator,  I  believe. 

The  Chairman.  So  in  that  case,  you  may  very  well — and  I  am  not 
looking  for  a  hypothetical,  but  it  is  possible  that  you  could  conclude 
that,  for  a  particular  circumstance,  there  was  not  a  right  of  privacy 
guaranteed  in  the  Federal  Constitution  on  a  particular  issue,  but 
may  very  well  be  enumerated  in  the  Florida  State  Constitution? 
You  would  not  be  in  any  way  violating  the  Federal  Constitution  by 
upholding  a  more  stringent  or  a  more  clearly  articulated  right  set 
out  in  the  Florida  Constitution? 

Justice  Barkett.  I  would  not  be  interpreting  the  Florida  Con- 
stitution or  applying  Florida  law  in  a  Federal  context,  except  in 
those  cases  where  I  am  required 

The  Chairman.  I  mean  now,  as  a  Florida  Supreme  Court  Justice. 

Justice  Barkett.  That  is  correct.  Senator.  For  example,  in  a  pri- 
vacy case,  it  would  not  be  necessary  to  deal  with  any  Federal  con- 
stitutional issues.  We  look  to  them,  of  course,  for  persuasiveness 
and  for  guidance,  as  we  do  to  many  other  courts. 

The  Chairman.  As  the  Chief  Justice  of  the  Supreme  Court  of  the 
State  of  Florida,  in  a  matter  that  just  deals  with  Florida  statute, 
the  Florida  Constitution  is  not  in  any  contravention  of  any  Federal 
constitutional  interpretation.  Are  you  able  to,  in  your  view,  along 
with  your  associates  on  the  bench  of  the  supreme  court,  overrule 
standing  precedent  of  the  Florida  Supreme  Court? 

Justice  Barkett.  Of  course.  Senator.  It  is  the  function  of  the 
court  of  last  resort  to  do  so.  Of  course,  on  the  Eleventh  Circuit 
Court  of  Appeals,  assuming  I  have  the  opportunity  to  serve  there, 
that  would  be  a  job  reserved  for  the  U.S.  Supreme  Court. 

The  Chairman.  Put  another  way,  if  you  strongly  disagree  with 
a  U.S.  Supreme  Court  ruling,  as  an  appellate  judge  on  the  eleventh 
circuit,  and  you  were  convinced,  though,  that  the  facts  were  clear, 
the  circumstances  were  clear  that  it  fit  clearly  on  all  fours  within 
the  context  of  a  recent  or  the  standing  Supreme  Court  position  on 
a  particular  issue,  even  though  you  disagreed  with  the  reasoning 
of  the  Supreme  Court  as  to  how  they  reached  that  conclusion,  what 
is  your  requirement  under  your  oath  of  office  to  do? 

Justice  Barkett.  To  follow  the  law,  Senator.  That  is  what  I  have 
done  and  that  is  what  I  anticipate  I  will  always  do  as  long  as  I  am 
a  judge. 

The  Chairman.  I  am  sorry  to  keep  focusing  on  this,  but  it  is  im- 
portant. As  a  supreme  court  justice  in  the  State  of  Florida,  in  the 
literal  sense,  you  need  not  follow  the  law  as  interpreted  by  your 
colleagues  the  day  before  or  10  days  before  or  30  years  before.  You 


365 

can  sit  there  and  say  I  think  the  reasoning  was  faulty  in  the  case 
of  Smith  V.  Jones,  which  is  the  law  of  the  State  of  Florida,  as  inter- 
preted by  the  Florida  Supreme  Court  as  it  relates  to  the  Constitu- 
tion of  the  State  of  Florida,  and  you  can  say  I  think  that  was  faulty 
reasoning,  it  stood  for  30  years  or  30  days,  I  am  going  to  vote  to 
overrule  that  case.  So  that  is,  in  the  literal  sense,  not  upholding 
the  law.  You  are  rewriting  the  law.  You  are  redefining  the  law,  not 
rewriting,  redefining  the  case  law. 

As  an  appellate  court  judge,  is  it  within  your  province,  under 
your  oath  of  office,  if  you  are  sworn  in,  to  similarly  act  with  regard 
to  U.S.  Supreme  Court  ruling  with  which  you  believe  there  is 
faulty  reasoning  and  a  misapplication  of  the  law? 

Justice  Barkett.  As  a  member  of  the  court  of  last  resort  in  the 
State,  you  are  permitted  within  the  ambit  of  your  authority  and  it 
is  appropriate  to  on  occasion  reverse  your  prior  precedent.  One 
does  not  do  that  lightly,  Senator,  and  it  is  not  a  regular  occurrence, 
obviously.  On  the  Eleventh  Circuit  Court  of  Appeals,  a  judge  does 
not  overrule  the  precedent  of  the  Supreme  Court  or  even  of  its  own 
court,  barring,  of  course,  those  rare  instances  where  there  might  be 
an  en  banc  reconsideration  of  an  issue. 
The  Chairman.  I  thank  you.  My  time  is  up. 

Senator  Hatch  has  questions  and  he  is  next,  and  they  asked  me 
to  wait  while  he  comes  in  from  the  reception  room  in  a  moment. 
Senator  Cohen.  I  would  be  happy  to  proceed  in  his  absence,  Mr. 
Chairman. 

The  Chairman.  As  they  say,  when  I  look  at  my  colleagues  on  the 
Republican  side  and  the  senior  member  is  waiting  to  ask  questions, 
there  is  an  expression  a  former  Republican  leader  used  to  have,  "I 
ain't  got  no  dog  in  that  fight,"  so  I  am  going  to  wait  and  let  the 
senior  member  ask  his  questions. 
Senator  COHEN.  The  senior  dog  has  just  arrived.  [Laughter.] 
Senator  Hatch.  I  have  been  called  worse,  I  want  you  to  know. 
We  welcome  you  to  the  committee,  Justice  Barkett. 
Justice  Barkett.  Thank  you,  Senator. 

Senator  Hatch.  We  appreciate  what  a  wonderful  family  you 
have.  I  have  met  a  number  of  them  and  I  have  been  called  by 
them,  and  I  truly  believe  you  have  a  wonderful  family. 

What  I  would  like  to  do  is  go  through  some  preliminary  things 
and  then  start  and  do  as  much  as  I  can  before  I  turn  to  our  col- 
leagues on  the  committee. 

Is  it  not  the  case  that  there  will  be  many  issues  which  will  come 
before  you,  as  a  circuit  court  of  appeals  judge,  if  confirmed,  which 
are  not  directly  governed  by  precedent? 

Justice  Barkett.  I  suppose,  although  candidly.  Senator,  most  is- 
sues will  have  some  analogous  precedent  or  some  prior  expressions. 
Senator  Hatch.  I  believe  you  will  have  many  cases  of  first  im- 
pression before  you.  But  you  are  right,  there  will  be  a  lot  of  cases 
that  involve  precedent  which  you  have  to  consider.  For  example. 
Congress  enacts  new  laws  all  the  time  which  require  initial  consid- 
eration in  the  lower  courts,  starting  with  the  district  court  in  most 
cases.  Some  of  them  do  come  directly  to  the  circuit  courts,  I  imag- 
ine. But  State  legislatures  enact  laws  all  the  time  that  also  are 
subject  to  challenge  on  constitutional  grounds.  So  you  will  have 
cases  that  really  will  be  first  impression  cases. 


366 

But  is  it  not  also  true  that  there  will  be  other  cases  in  which  the 
scope,  the  breadth  or  narrowness  of  existing  precedent  will  be  dis- 
puted? You  have  had  that  in  your  experience  as  a  supreme  court 
justice.  As  you  know,  the  Supreme  Court  grants  review  in  only  a 
tiny  fraction  of  all  court  of  appeals  decisions.  So  it  is  fair  to  say, 
is  it  not,  that  Federal  courts  of  appeals  have  the  final  word  in  al- 
most all  the  cases  that  really  come  before  them? 

Justice  Barkett.  They  have  a  substantial  impact,  I  am  sure, 
Senator. 

Senator  Hatch.  They  do.  In  light  of  all  of  this,  it  is  also  fair  to 
say  that  a  Federal  appellate  judge's  philosophy  or  approach  to 
judging  would  naturally  be  important  to  us  on  this  committee  and 
to  everybody  else,  for  that  matter.  You  would  agree  with  that? 

Justice  Barkett.  I  agree  that  their  approach  to  judging  is.  I  am 
not  sure  I  understand  what  you  mean  by  philosophy. 

Senator  Hatch.  I  understand  that.  It  is  not  just  the  Supreme 
Court  justice's  judicial  philosophy  that  is  significant.  Lower  court 
decisions  cover  so  many  issues,  from  crime  to  obscenity  to  privacy 
to  civil  rights  and  so  on,  that  those  particular  decisions  often  be- 
come the  law  of  that  particular  circuit,  and  it  is  common  to  have 
split-circuit  opinions,  where  one  circuit  may  differ  from  another  cir- 
cuit. So  there  are  differences  in  philosophy,  differences  in  prece- 
dent, differences  in  cases  of  first  impression,  all  of  which  you  have 
had  to  deal  with  to  a  limited  degree  as  a  justice  on  the  Florida  Su- 
preme Court,  but  which  you  will  have  to  deal  with  to  a  much  larger 
degree  as  a  judge  on  the  circuit  court  of  appeals. 

Justice  Barkett.  Yes,  sir. 

Senator  Hatch.  Let  me  just  turn  briefly  to  the  general  subject 
of  opinion  writing.  Part  of  the  reason  that  appellate  judges  embody 
their  decisionmaking  in  written  opinions  is  to  provide  guidance  to 
lower  courts  and  parties  in  future  cases.  I  am  sure  you  would  agree 
with  that. 

Justice  Barkett.  Yes,  sir. 

Senator  Hatch.  And  part  of  the  reason  is  to  satisfy  the  parties 
and  the  public  that  the  court  is  in  fact  engaged  in  reasoned  deci- 
sionmaking, correct? 

Justice  Barkett.  Yes,  sir. 

Senator  Hatch.  So  you  would  agree,  I  trust,  that  it  is  important 
for  judges  to  explain  their  thinking,  especially  appellate  judges,  as 
they  decide  these  cases? 

Justice  Barkett.  Yes. 

Senator  Hatch.  I  want  to  ask  you  some  questions  about  your 
judging  under  the  equal  protection  clause  of  the  Federal  Constitu- 
tion. This  is  extremely  important  to  me  and  I  think  to  almost  any- 
body who  is  concerned  about  constitutional  decisionmaking. 

Let  me  just  first  ask  you  whether  or  not  you  agree  with  Justice 
Blackmun's  formulation  of  the  test  for  deciding  cases  under  the 
equal  protection  clause  or  with  equal  protection  clause  implica- 
tions. Writing  for  the  court  in  a  1992  case,  Nordlinger  v.  Hahn,  he 
said,  "This  Court's  cases  are  clear  that,  unless  a  classification  war- 
rants some  form  of  heightened  review  because  it  jeopardizes  exist- 
ence of  a  fundamental  right  or  categorizes  on  the  basis  of  an  inher- 
ently suspect  characteristic,  the  equal  protection  clause  requires 


367 

only  that  the  classification  rationally  fiirther  a  legitimate  State  in- 
terest." Do  you  agree  with  his  articulation  of  that? 

Justice  Barkett.  I  agree  that  Justice  Blackmun  said  that,  yes, 
Senator. 

Senator  Hatch.  But  do  you  agree  with  what  he  said? 

Justice  Barkett.  I  agree  that  the  law  of  equal  protection  is  what 
has  been  said  by  the  U.S.  Supreme  Court  and  the  Federal  courts, 
absolutely,  and  I  would  follow  that  precedent  without  any  quarrel. 

Senator  Hatch.  He  basically  defined  the  rational  basis  test  in 
that  statement? 

Justice  Barkett.  Yes,  sir. 

Senator  Hatch.  And  that  law  has  been  settled  for  at  least  the 
last  few  decades? 

Justice  Barkett.  I  do  not  have  any  question  about  that,  Senator, 
on  the  Federal  side,  understanding  that  our  requirements  under 
the  Florida  Constitution  and  under  Florida  cases  differ  slightly. 

Senator  Hatch.  Sure. 

Justice  Barkett.  Or  somewhat. 

Senator  Hatch.  Justice  Blackmun  also  explained  in  the 
Nordlinger  case  how  the  rational  basis  standard  is  to  be  applied. 
As  he  reiterated,  it  is  a  well  settled  test. 

Justice  Barkett.  Yes. 

Senator  Hatch.  He  said,  "The  Equal  Protection  Clause  is  satis- 
fied so  long  as  there  is  a  plausible  policy  reason  for  the  classifica- 
tion, the  legislative  facts  on  which  the  classification  is  apparently 
based  rationally  may  have  been  considered  to  be  true  by  the  gov- 
ernment decisionmaker,  and  the  relationship  of  the  classification  to 
its  goal  is  not  so  attenuated  as  to  render  the  distinction  arbitrary 
or  irrational."  Do  you  agree  with  that  statement? 

Justice  Barkett.  Yes,  sir. 

Senator  Hatch.  Indeed,  in  1980,  in  USRR  Retirement  Board  v. 
Fritz,  the  Supreme  Court  noted  that  so  long  as  there  are  plausible 
reasons  for  the  legislature's  action,  the  court's  inquiry  "is  at  an 
end."  Indeed,  citing  a  1960  decision,  the  Court  there  also  made  it 
clear  that  it  is  irrelevant  whether  these  plausible  reasons  were  ar- 
ticulated by  the  legislature  or  even  actually  underlie  the  legisla- 
tion. That  is  how  deferential  the  standard  is  for  elected  representa- 
tives to  make  these  laws. 

And  as  the  Supreme  Court  has  stated,  this  standard  "is  a  para- 
digm of  judicial  restraint,"  because  it  protects  against  courts  using 
equal  protection  as — and  it  is  an  interesting  quote — "a  license  to 
judge  the  wisdom,  fairness  or  logic  of  legislative  choices,"  as  dis- 
tinct from  the  constitutionality  of  those  choices.  That,  of  course,  is 
the  FCC  V.  Beach  Communications  case. 

So  I  wanted  to  go  through  just  to  establish  that  we  are  both  talk- 
ing on  the  same  wave  length,  when  we  discuss  these  equal  protec- 
tion cases. 

What  I  would  like  to  do  is  just  go  through  some  of  the  cases.  I 
am  not  going  through  them  from  the  standpoint  that  I  agree  or  dis- 
agree with  the  outcome,  because  that  is  almost  irrelevant. 

Justice  Barkett.  I  understand,  Senator. 

Senator  Hatch.  I  am  going  through  them  with  regard  to  judicial 
reasoning  and  philosophy.  Let  me  just  turn  to  your  dissenting  opin- 
ion in  University  of  Miami  v.  Echarte.  This  is  a  1993  case.  In  that 


368 

case,  the  Florida  Supreme  Court  ruled  that  a  State  law  placing  a 
monetary  cap  on  noneconomic  damages — that  is  damages  for  pain 
and  suffering — in  medical  malpractice  cases  did  not  violate  equal 
protection. 

The  Florida  Legislature  had  found  that  there  was  a  financial  cri- 
sis in  the  medical  liability  insurance  industry,  that  if  the  crisis  was 
not  abated,  many  providers  of  medical  care  would  "be  unable  to 
purchase  liability  insurance  and  many  injured  persons  [would] 
therefore  be  unable  to  recover  damages,"  that  the  size  and  fre- 
quency of  very  large  claims  was  the  cause  of  these  problems,  and 
that  damages  for  noneconomic  losses  were  being  awarded  arbitrar- 
ily and  irrationally. 

Now,  you  dissented  on  a  variety  of  State  law  grounds,  but  you 
also  dissented  on  the  ground  that  the  caps  on  noneconomic  dam- 
ages, in  your  view,  violated  the  equal  protection  of  the  U.S.  Con- 
stitution. Now,  I  am  not  concerned  here  with  the  merits  of  caps  on 
noneconomic  damages  in  medical  malpractice  cases  or  medical  li- 
ability cases,  as  I  prefer  to  call  it. 

Justice  Barkett.  I  understand. 

Senator  Hatch.  My  concern  goes  to  your  use  of  the  Federal  equal 
protection  clause  as  a  basis  for  a  court  to  strike  down  such  caps, 
because  it  seems  to  me  to  be  clearly  at  odds  with  settled  Supreme 
Court  precedent  on  the  deference  to  be  given  legislative  bodies 
under  that  clause. 

Now,  your  opinion  says,  "I  fail  to  see  how  singling  out  the  most 
seriously  injured  medical  malpractice  victims  for  less  than  full  re- 
covery bears  any  rational  relationship  to  the  legislature's  stated 
goal  of  alleviating  the  financial  crisis  in  the  medical  liability  insur- 
ance industry." 

Now,  it  seems  to  me  that  the  rational  relationship  between  the 
means  and  the  goal  is  self-evident,  namely,  limiting  the  award  of 
enormous  noneconomic  damages  can  be  rationally  expected  both  to 
reduce  malpractice  premiums  which  are  passed  on  to  patients  by 
doctors,  and  to  help  alleviate  the  financial  crisis  in  the  medical  li- 
ability industry. 

Now,  I  can  understand  someone  disagreeing  with  the  legislation 
as  a  matter  of  policy.  I  may  or  may  not  agree  with  that  myself.  But 
given  the  legislature's  judgement  about  the  medical  malpractice 
crisis  in  the  State  of  Florida,  where  it  is  even  difficult  to  get  obste- 
tricians to  deliver  babies  in  certain  areas,  how  can  you  as  a  judge 
use  the  Federal  Constitution's  Equal  Protection  Clause  to  strike 
down  that  law  as  irrational?  And  how  can  it  fairly  be  said  that  the 
cap  on  noneconomic  damages,  to  use  your  terms,  can  only  be  called 
arbitrary  and  bears  no  rational  relationship  to  alleviating  the  medi- 
cal malpractice  industry? 

Justice  Barkett.  I  think  my  answer  really  has  to  refer  or  incor- 
porate much  of  what  I  said  to  Senator  Biden,  Senator  Hatch,  in  the 
sense  that  when  you  are  sitting  as  a  State  Supreme  Court  justice, 
you  look  at  these  cases  totally  within  the  ambit  of  Florida  law  and 
Florida  cases.  That  particular  case  was  argued  primarily  under  the 
auspices  of  being  denied  access  to  courts. 

There  is  a  landmark  case  in  Florida  called  Kluger  v.  White, 
which  said  that  before  a  right  of  access  to  courts  can  be  restricted, 
a  reasonable  alternative  must  be  provided  or  the  legislature  must 


369 

show  an  over-powering  public  necessity  for  abolishing  that  right, 
and  that  there  is  no  alternative  means  of  meeting  that  public  ne- 
cessity. That  is  a  very  strong  standard,  and  my  court  has — this  has 
antedated  my  appearance  on  the  court. 

The  argument  in  the  Echarte  case  about  limiting  economic  dam- 
ages, in  essence,  really  basically  was  an  argument  under  the  access 
to  courts  provision,  which  is  also  included  in  our  Constitution  ex- 
pressly, and  it  is  not  in  the  Federal  Constitution. 

Senator  Hatch.  I  understand  that. 

Justice  Barrett.  If  I  can  just  kind  of  get  the  whole  tenor  out, 
having  said  that,  we  also  at  the  same  time  have  a  much  different 
standard  in  evaluating  equal  protection  claims  under  the  Florida 
Constitution  by  case  law.  Our  court's  analysis  of  the  rational  rela- 
tionship test  is  a  much  more  stringent  test  and  permits  judges,  on 
a  different  standard,  to  review  the  relationship  between  the  two. 

I  grant  you  that  I  used  the  term  "Federal  Constitution,"  but  if 
you  look  at  my  dissent  in  that  case  and  that  I  think  of  Justice 
Shaw,  with  whom  I  concurred,  the  analysis  is  totally  using  Florida 
cases  under  a  Florida  system,  and  if  the  concern  is  whether  I 
would  apply  this  analysis  under  the  Federal  Constitution,  I  of 
course  could  not,  because  the  law  is  very  different,  as  you  have  laid 
it  out  to  be.  That  was  basically  viewed  as  a  KLuger  v.  White  access 
to  courts  question,  which  requires,  when  a  cause  of  action  is  taken 
away  from  a  plaintiff,  that  it  has  to  be  on  the  basis  of  an  over- 
whelming necessity  that  the  legislature  must  show,  and  that  there 
is  no  other  reasonable  alternative. 

The  Chairman.  I  would  ask  unanimous  consent,  since  the  Sen- 
ator's time  is  up,  to  allow  him  to  finish  this  line  of  questioning. 
There  is  going  to  be  a  vote  at  11:25,  so  I  am  going  to  leave  and 
go  vote,  so  we  will  not  have  an  interruption.  I  might  suggest  that 
maybe  those 

Senator  Hatch.  It  may  be  important  to  just  finish  this  line,  so 
we  will  get  it  out  of  the  way. 

Justice  Barkett.  I  would  appreciate  it. 

Senator  Hatch.  When  I  read  the  case,  you  relied  on  equal  protec- 
tion language,  the  Federal  equal  protection  language,  and,  frankly, 
I  could  not  see  how  anybody — you  are  saying  if  you  had  to  rely  on 
Federal  equal  protection,  the  decision  might  have  been  totally  dif- 
ferent? 

Justice  Barkett.  No,  I  used  the  term  Federal  Constitution.  I  ap- 
pended it  to  the  Florida  Constitution  and  the  Federal  Constitution. 
We  do  use  terms  of  rational  relationship,  but  our  test,  our  ability 
to  apply  the  test  differs  from  the  Federal  court's  ability  to  apply 
the  test. 

Senator  Hatch.  You  see  why  I  was  concerned? 

Justice  Barkett.  Absolutely. 

Senator  Hatch.  Virtually  every  State  in  Federal  law  classifies 
people  in  one  way  or  another  and  draws  distinctions  between  peo- 
ple. 

Justice  Barkett.  I  understand. 

Senator  Hatch.  For  this  reason,  the  Federal  equal  protection 
clause  is  one  of  the  most  powerful  tools  for  a  judge  to  wield  in  order 
to  override  judgments  committed  under  our  system  to  the  people  or 
their  elected  legislators. 


370 

Justice  Barrett.  I  have  no  problem  applying  the  Federal  law  on 
equal  protection  or  anything  else,  as  a  member  of  the  Eleventh  Cir- 
cuit, should  you  permit  me  to  serve  in  that  capacity.  Senator. 

Senator  Hatch.  That  is  fine. 

Let  me  just  go  a  little  bit  further  here.  You  had  several  State 
court  grounds  in  that  case.  It  did  not  have  to  reach  out  to  the  Fed- 
eral equal  protection  clause,  and  you  are  saying  here  that  perhaps 
you  shouldn't  have. 

Justice  Barkett.  The  only  reaching  out  was  including  the  phrase 
"Federal  Constitution,"  I  should  not  have  done  that.  The  analysis, 
the  cases  that  I  relied  on,  the  cases  that  the  other  judges  relied  on 
were  exclusively  Florida  cases.  I  do  not  think  you  will  see  one  Fed- 
eral case  cited  in  my  dissent,  Senator.  I  do  understand  the  dif- 
ference and  want  to  reassure  you  that  there  is  no  problem  in  apply- 
ing the  Federal  standard. 

Senator  Hatch.  I  appreciate  that.  The  reason  it  juniped  out  at 
me  when  I  read  the  case,  you  write  "I  agree  with  Justice  Shaw  that 
the  statutes  in  question  violate  article  I,  section  21  of  the  Florida 
Constitution.  I  also  believe  the  statutes  violate  the  right  to  trial  by 
jury  and  the  equal  protection  clauses  of  the  Florida  and  U.S.  Con- 
stitutions." 

Justice  Barrett.  I  understand. 

Senator  Hatch.  I  have  concerns  about  another  one  of  your  equal 
protection  opinions,  and  that  is  Shriners  Hospital  v.  Zrillic.  I  guess 
I  am  pronouncing  that  right.  It  is  a  1990  case. 

Justice  Barrett.  I  have  it  here,  but  I  did  not  get  a  chance  to 
look  it  over. 

Senator  Hatch.  You  may  be  the  first  witness  in  the  history  of 
this  committee  who  has  been  given  the  cases  in  advance  by  the 
committee.  But  it  came  up  in  one  of  our  prior  hearings,  and  I 
thought  it  was  a  good  idea,  so  I  decided  to  give  you  all  those  cases 
and  hopefully  they  will  be  helpful  to  you  and  helpful  to  us. 

Justice  Barrett.  Thank  you.  Senator. 

Senator  Hatch.  In  that  case,  the  Florida  statute  permitted  a  di- 
rect heir  to  cancel  a  gift  to  a  charity  made  in  a  will  that  was  writ- 
ten less  than  6  months  before  the  author  of  the  will,  the  so-called 
testator,  died.  In  short,  the  statute  operated  to  guard  against 
undue  influence  by  charities  with  people  who  are  making  wills. 

You  wrote  the  opinion  for  a  divided  court  striking  down  the  stat- 
ute. One  of  the  grounds  on  which  you  struck  it  down  was  the  Fed- 
eral equal  protection  clause.  My  concern  here  again  is  not  with  the 
wisdom  or  lack  of  wisdom  in  this  statute.  I  am  not  going  to  judge 
Florida  law  on  that  basis.  Rather,  I  am  concerned  with  the  reason- 
ing by  which  you  use  the  Federal  equal  protection  clause  to  invali- 
date it. 

In  that  case,  you  stated:  "Equal  protection  analysis  requires  that 
classifications  be  neither  too  narrow  nor  too  broad  to  achieve  the 
desired  end.  Such  under-inclusive  or  over-inclusive  classifications 
fail  to  meet  even  the  minimal  standards  of  the  rational  basis  test." 

Now,  your  opinion  proceeds  to  hold  that  the  statute  is  under-in- 
clusive, because  it  protects  against  only  one  type  of  undue  infiuence 
on  a  person  making  a  will,  that  is  influence  by  charitable  organiza- 
tions. Moreover,  you  said  that  the  statute  is  over-inclusive,  because 


371 

it  would  render  voidable  many  donations  not  tainted  by  undue  in- 
fluence. Are  you  having  any  trouble  finding  that  case? 

Justice  Barkett.  No. 

Senator  Hatch.  We  will  get  it  for  you. 

Justice  Barkett.  I  have  it. 

Senator  Hatch.  Your  opinion  further  states  that  the  6-month  pe- 
riod set  forth  in  the  statute  is  irrational.  Now,  your  words  are 
"there  is  no  rational  distinction  to  automatically  void  a  devise  upon 
request  when  the  testator  survives  the  execution  of  the  bill  by  5 
months  and  28  days,  but  not  when  the  testator  survives  a  few  days 
longer."  Would  what  I  have  just  said  be  a  fair  summary  of  your 
equal  protection  holding? 

Justice  Barkett.  I  do  not  dispute  it.  Senator.  Again,  I  frankly 
was  wondering  why  you  included  Shriners  Hospital,  because  I 
could  not  figure  out  what  interest  you  all  would  have  in  it. 

Senator  Hatch.  It's  the  equal  protection  clause,  because  let  me 
just  bring  it  down  to  where  it  is.  If  your  interpretation  of  the  equal 
protection  clause  as  written  in  the  prior  case  we  discussed — but 
you  have  explained  that — and  as  written  in  this  case  is  the  law, 
that  means  the  judges  can  do  whatever  they  want  to  do.  They  do 
not  have  to  abide  by  any  law.  They  can  just  use  the  equal  protec- 
tion clause  to  justify  any  decision  that  they  make,  based  on  their 
own  personal,  political  or  policy  differences  with  the  elected  rep- 
resentative statutes. 

Justice  Barkett.  I  understand  the  concern.  Senator,  but  I  do  not 
think  it  is  justified  in  my  case.  And  with  reference  to  Shriners  Hos- 
pital, the  thrust  of  that  opinion  again  was  grounded  in  the  Florida 
Constitution,  which  is  very  specific  about  providing  the  right  to  ac- 
quire, possess  and  protect  property,  and  it  goes  on  to  deal  with  in- 
heritance issues  and  so  forth,  and  reposit  in  individuals  the  right 
to  dispose  of  their  property  however  they  want  to. 

Again,  when  I  am  thinking  equal  protection,  generally  I  am 
thinking  in  terms  of  the  prior  case  law  of  my  own  court  in  my  own 
State,  which  differs  somewhat,  but 

Senator  Hatch.  You  can  see  why  I  am  upset  with  it,  because — 
I  am  not  upset  with  you,  I  mean  you  have  a  right  to  feel  the  way 
you  want  to.  On  the  courts,  we  are  really  upset,  when  judges  then 
start  using  the  equal  protection  clause  to  justify  any  policy  change 
they  want,  regardless  of  what  their  elected  representatives  do.  Un- 
fortunately, that  has  been  happening  all  over  this  country,  and  it 
has  been  happening  in  a  variety  of  ways. 

When  you  state  in  the  case — and  this  is  on  page  69,  in  the  right 
column,  right  under  IV— "We  also  find  that  section  732-803  vio- 
lates the  equal  protection  guarantees  of  Article  I,  Section  2  of  the 
Florida  Constitution,  and  the  Fourteenth  Amendment  of  the  United 
States  Constitution." 

Justice  Barkett.  Senator,  I  understand  your  concern.  As  I  said, 
I  do  not  think  it  is  warranted  in  my  case,  and  I  think  if  you  take 
a  look  at  my  entire  record  and  my  view  of  the  separation  of  powers, 
I  think  you  will  find  that  I  have  fairly  consistently  attempted  to 
recognize  that  policymaking  is  not  within  the  purview  of  the  judici- 
ary, I  do  not  believe  in  reading  things  into  statutes. 

I,  in  fact,  given  the  choice  of  it  is  something  substantive,  I  vote 
to  find  it  unconstitutional  and  send  it  back  to  the  legislature. 


372 

where,  in  the  give  and  take  of  legislative  debate  and  consideration 
of  issues,  which  judges  do  not  have  the  opportunity  to  do,  they 
would  have  the  opportunity  to  fix  the  statute  so  that  it  would  pass 
constitutional  muster,  not  the  way  judges  want  to  fix  it,  but  the 
way  legislatures  ought  to  fix  that.  I  have  taken  that  position  fairly 
consistently  in  my  judicial  career. 

Senator  Hatch.  That  statement  pleases  me,  and  I  have  to  say 
that  it  is  consistent  with  what  I  think  is  good  judging.  But  my  con- 
cern is  that  your  application  of  the  rational  basis  test  in  this  case 
collides  head-on  with  several  principles  that  earlier  Supreme  Court 
cases — let  me  just  mention  some  of  those  precedents  and  ask  you 
to  respond  to  those  concerns. 

Senator  Simon.  I  do  not  mean  to  cut  off  Senator  Hatch.  I  would 
like  to  get  in  a  few  questions.  I  will  not  be  able  to  return  after  the 
vote. 

Senator  Hatch.  I  hope  it  will  not  take  me  too  long.  The  vote  just 
started? 

Senator  Simon.  We  have  a  vote  on  right  now. 

Senator  Hatch.  I  have  to  finish  this  one  point.  Let  me  see  if  I 
can  hurry  through  this  and  give  you  the  time  to  answer  a  few  ques- 
tions. 

The  Supreme  Court  has  specifically  held  that  a  classification 
does  not  violate  the  equal  protection  clause  simply  because  it  is  "to 
some  extent  under-inclusive  and  over-inclusive,"  and  that  is  Vance 
V.  Bradley. 

Justice  Barkett.  I  have  no  problem  following  the  Federal  law, 
if  and  when  I  am  in  the  Federal  system,  and  will  certainly  not 
apply  any  Florida  precedent  to  situations  in  which  there  already  is 
Federal  precedent.  Senator.  I  can  assure  you  and  the  American 
people  of  that. 

Senator  Hatch.  Well,  I  appreciate  that  comment,  but  I  am  trou- 
bled by  your  ruling  that  the  6-month  period  is  irrational,  simply 
because  it  produces  different  results,  even  under  Florida  law,  when 
the  testator  survives  5  months  and  28  days  or  maybe  a  few  days 
longer,  or  6  months  and  1  day.  Virtually  the  same  objection  could 
be  voiced  against  every  time  limit  in  the  law,  including,  for  exam- 
ple, a  1-year  statute  of  limitations  period  or  limiting  protection 
against  age  discrimination  to  those  who  are  40  years  of  age  or 
older.  Such  time  limits  are,  by  necessity,  inherently  and  inevitably 
arbitrary. 

Justice  Barkett.  The  only  thing  I  can  suggest.  Senator,  is  that 
you  read  the  entire  case  in  its  context  and  the  history  of  both  of 
the  equal  protection  cases  in  Florida,  as  well  as  the  Constitution 
upon  which  frankly  I  was  focused  in  that  case  more  than  anything 
else,  and  that  is  the  right  of  ownership  over  property  and  the  abil- 
ity to  dispose  of  it  as  one  wishes,  that  is  the  testate. 

Senator  Hatch.  I  understand.  But  can  you  show  me  any  place 
in  Federal  authority  that  would  justify  that  decisionmaking? 

Justice  Barkett.  All  I  can  tell  you  there  is,  whatever  the  Federal 
authority  is,  that  is  what  I  will  be  guided  by  in  the  eleventh  circuit 
court  of  appeals,  assuming  I  have  the  opportunity  to  serve  there. 
I  do  not  think  there  is  any  question  of  that,  and  I  do  not  think 
there  is  any  question  really,  either,  of  my  applying  legislative  man- 
dates wherein  I  have  questioned  the  wisdom  of  them. 


373 

There  have  been  many  opportunities  to  have  expressed  a  view 
that  the  law  was  unwise  and,  therefore,  we  were  going  to  overrule 
it.  But  I  do  not  think  it  is  in  the  prerogative  of  judges  to  do  so. 
I  have  not  done  so,  in  my  judgment,  in  the  face  of  unwise  laws,  and 
I  do  not  intend  to  do  that  in  the  future. 

Senator  HATCH.  I  am  not  trying  to  give  you  a  rough  time,  but 
these  are  really  important  positions.  The  circuit  court  of  appeals  is 
very,  very  important.  We  have  established  that  they  decide  finally 
most  cases  in  our  society.  It  is  not  your  position,  is  it,  that  your 
obligation  to  follow  the  Federal  Constitution  and  Federal  laws  and 
U.S.  Supreme  Court  precedent  is  different  as  a  U.S.  court  of  ap- 
peals judge  than  it  would  be  as  a  justice  on  the  Florida  Supreme 
Court? 

Justice  Barrett.  I  am  suggesting  that  the  ambit  is  different. 
When  I  am  looking  at  a  Florida  case,  I  am  looking  at  the  Florida 
law  and  interpreting  and  talking  about  equal  protection.  I  am  look- 
ing at  the  Florida  constitutional  requirements,  and  I  am  looking  at 
the  totality  of  the  way  the  arguments  are  presented  and  framed. 

In  the  Federal  system,  they  would  not  be  presented  and  framed 
or  involved  with  a  Florida  constitutional  provision  that  is  going  to 
let  you  look  at  things  focused  mostly  on  the  Florida  constitutional 
provision,  as  opposed  to  some  of  the  ancillary  issues  that  are 
raised. 

Senator  Hatch.  Can  you  cite  any  precedents  under  Florida  law 
that  would  allow  you  to  use  the  equal  protection  under  that  Con- 
stitution in  this  broad  a  fashion,  so  you  strike  down  basically  the 
classifications  by  the  State  legislature? 

Justice  Barrett.  I  can  read  to  you  the  language  in  a  case,  it  is 
in  the  1970's:  "In  order  to  comply  with  the  requirements  of  the 
Equal  Protection  Clause,  statutory  classifications  must  be  reason- 
able and  nonarbitrary,  and  all  persons  in  the  same  class  must  be 
treated  alike.  When  the  difference  between  those  included  in  a 
class  and  those  excluded  from  it  bears  a  substantial  relationship  to 
the  legislative  purpose,  the  classification  does  not  deny  equal  pro- 
tection." When  it  does,  then  it  does.  There  are  other  lines  of  cases 
where  the  analysis  is  very  different  from  the  Federal  analysis,  as 
it  were. 

Senator  Hatch.  I  want  to  finish  this  line  of  questions,  because 

it  is  important. 

Senator  SiMON.  I  do  not  m.ean  to  cut  you  off,  but  I  am  going  to 
have  to  get  a  few  things  in  here. 

Senator  Hatch.  I  think  I  can  do  it  in  a  couple  of  minutes,  if  we 
do  not  get  into  an  argument. 

Senator  SiMON.  Two  minutes  and  then  I  am  going  to  take  over. 

Justice  Barrett.  What  do  I  do? 

Senator  Hatch.  You  just  be  yourself.  We  will  handle  this  one 
way  or  the  other.  [Laughter.] 

My  concern  naturally  about  your  rationale  in  those  two  cases — 
and  there  are  only  two,  and  I  have  a  number  of  others,  but  you  are 
answering  these  matters — my  concern  about  your  rationale  in  this 
case  is  it  goes  far  towards  transforming  rational  basis  scrutiny  into 
strict  scrutiny,  which  is  very,  very  important. 

Indeed,  if  applied  consistently,  it  seems  to  me  that  there  are  few 
laws  that  could  survive  the  test  that  you  set  forth  in  that  particu- 


374 

lar  case.  Of  equal  concern  is  the  prospect  that  the  test  would  not 
be  applied  consistently,  but  would  be  used  arbitrarily  and  selec- 
tively to  strike  down  particular  laws  that  any  judge  can  say  is  over- 
broad or  unsound. 

If  I  was  to  illustrate  it,  I  would  compare  your  opinion  in  this  case 
to  your  opinion  in  LeCroy  v.  State.  In  that  case,  the  six  other  Flor- 
ida Supreme  Court  justices  voted  to  affirm  the  death  sentence  for 
a  murderer  who  was  17  years  and  10  months  old  at  the  time  he 
committed  two  brutal  first-degree  murders.  In  your  lone  dissent, 
you  took  the  position  that  the  eighth  amendment  ban  against  cruel 
and  unusual  punishment  prohibits  the  execution  of  a  person  who 
was  under  18  at  the  time  of  his  offense.  In  short,  you  took  the  view 
that  the  Constitution  imposed  a  bright-line  age  minimum  of  18  for 
offenses  that  can  result  in  the  death  penalty. 

Now,  let  me  note  incidentally  that  the  U.S.  Supreme  Court  sub- 
sequently rejected  the  position  that  you  took.  For  present  purposes, 
however,  I  would  like  to  simply  apply  the  methodology  of  your 
Zrillic  opinion  to  the  position  that  you  took  in  LeCroy.  If  you  apply 
the  Zrillic  methodology,  one  would  say  that  the  bright-line  age  min- 
imum of  18  is  both  under-inclusive  and  over-inclusive.  It  is  under- 
inclusive,  because  it  fails  to  protect  from  capital  punishment  those 
persons  over  18  who,  in  the  language  of  your  LeCroy  dissent,  "have 
not  fully  developed  the  ability  to  judge  or  consider  the  con- 
sequences of  their  behavior." 

Senator  SiMON.  I  hate  to  cut  off  my  colleague  from  Utah.  I  have 
great  respect  for  him,  but  he  has  used  his  2  minutes  and  I  have 
to  get  a  few  minutes  in  here  before  I  vote,  and  I  am  not  going  to 
be  able  to  come  back. 

Senator  Hatch.  All  right. 

OPENING  STATEMENT  OF  SENATOR  SIMON 

Senator  Simon.  Let  me  just  comment  briefly:  You  have  your  crit- 
ics, as  you  know,  Madam  Justice.  I  read,  for  example,  the  Washing- 
ton Times  that  says,  "The  Clinton  administration  would  be  wise  to 
withdraw  her  name  before  her  radical  views  become  an  embarrass- 
ment." 

Then  I  read  the  newspapers  in  Florida,  where  they  know  you, 
and  I  get  a  totally  different  message.  Here  is  the  Orlando  Sentinel: 
"Florida  Chief  Justice  Rosemary  Barkett,  tapped  to  be  a  Federal 
appeals  judge,  is  hardly  soft  on  crime,  as  her  opponents  say,"  and 
these  articles  they  keep  coming  in. 

In  regard  to  the  case  of  someone  under  the  age  of  18,  I  think  it 
is  important  to  emphasize  what  my  colleague  Senator  Hatch  said. 
The  Supreme  Court  ruled  subsequent  to,  not  prior  to,  your  ruling. 
And  let  me  just  add,  as  one  who  opposes  the  death  penalty  because 
it  is  a  penalty  reserved  for  people  of  limited  means,  I  also  oppose 
the  death  penalty  for  people  under  the  age  of  18.  There  are  only 
five  nations  on  the  face  of  the  earth  that  in  recent  years  have  le- 
gally executed  people  under  the  age  of  18.  Three  of  them  are  Iraq, 
Iran,  and  the  United  States.  We  are  not  keeping  the  best  of  com- 
pany in  some  of  these  things. 

But  the  question  before  us  is  not  the  death  penalty.  You  have  in 
over  200  cases  upheld  the  death  penalty.  The  question  is  whether 
you  are  going  to  uphold  the  law. 


375 

I  remember  when  Bill  Barr  sat  in  that  seat,  as  a  nominee  for  At- 
torney General  and  one  of  my  colleagues,  I  believe  it  was  Senator 
Metzenbaum,  asked  him  what  he  thought  of  the  Roe  v.  Wade  deci- 
sion, and  he  said  very  candidly,  "I  think  it  was  a  bad  decision,  but 
my  job  is  to  uphold  the  law."  And  I  gather  that  that  is  precisely 
the  position  that  you  take.  I  might  add  that  I  think  this  committee 
unanimously  approved  Bill  Barr,  no  matter  which  side  of  the  Roe 
V.  Wade  decision  we  were  on  and  I  think  we  ought  to  do  the  same 
for  Justice  Barkett,  no  matter  which  side  of  the  death  penalty  we 

are  on. 

Am  I  misconstruing  your  position? 

Justice  Barkett.  No,  Senator,  I  think  you  are  construing  it  cor- 
rectly. When  I  decided  LeCroy,  the  U.S.  Supreme  Court  in  Thomp- 
son had  itself  put  on  a  bright-line  rule  saying  that  you  could  not 
execute  anyone  under  16  years  old.  They  left  open  the  question  of 
whether  or  not  it  would  be  cruel  and  unusual  punishment  to  exe- 
cute someone  between  the  ages  of  16  and  18,  and  I  took  the  posi- 
tion that,  for  the  reasons  that  you  can  read  in  my  dissent,  which 
I  think  are  legally  supportable,  that  the  open  question  of  the  18- 
year-old  should  be  decided  on  the  basis  of  finding  it  cruel  and  un- 
usual punishment. 

Subsequent  to  that  time,  the  U.S.  Supreme  Court  spoke  in  San- 
ford,  and  all  I  can  tell  you  is  that  I  obviously  will  apply  the  prece- 
dent of  the  Supreme  Court  on  the  Eleventh  Circuit,  should  I  serve, 
and  as  I  have  done  on  the  Florida  Supreme  Court. 

I  also  have  to  take  pains  to  add  that  the  selective  use  of  cases 
is,  in  my  judgment,  unfair,  when  one  recognizes  that  I  am — I  think 
my  critics  sometimes  are  using  selective  cases  to  suggest  that  I  am 
not  in  the  main  stream,  but  my  record  reflects  otherwise,  when  you 
recognize  that  my  court  is  unanimous  approximately  70  percent  of 
the  time,  that  I  have  been  in  the  majority  in  about  91  percent  of 
the  time  on  my  court,  and  approximately  85  or  so  percent  on  crimi- 
nal cases.  So  I  am  hardly  out  of  the  main  stream. 

Senator  Simon.  I  do  not  mean  to  interrupt  you,  but  my  staff  tells 
me  I  have  4  minutes  left  to  get  over  and  vote. 

I  would  simply  like  to  insert  in  the  record  at  this  point  the  state- 
ment of  the  National  Association  of  Police  Organizations,  in  which 
using  their  words,  they  "wholeheartedly  support"  your  nomination. 

[The  letter  referred  to  follows:] 

National  Association  of  Police  Organizations,  Inc., 

Washington,  DC,  October  22,  1993. 

Hon.  Joseph  R.  Biden,  Jr., 
Chairman,  Committee  on  the  Judiciary, 
Dirksen  Senate  Office  Building,  Washington,  DC. 

Dear  Senator  Biden:  The  National  Association  of  Police  Organizations  ("NAPO") 
which  represents  over  143,000  sworn  law  enforcement  officers  in  more  than  2000 
associations  throughout  the  United  States  wholeheartedly  supports  the  nomination 
of  Florida  Chief  Justice  Rosemary  Barkett  to  the  Federal  Judiciary.  The  26  000 
NAPO  members  in  Florida  are  represented  by  Area  Vice  Presidents  who  have 
unanimously  voted  for  this  endorsement. 

During  the  recent  retention  election  in  Florida  there  was  much  debate  and  rhet- 
oric. Representatives  of  the  Florida  PBA  reviewed  Justice  Barkett's  record  and  the 
Florida  PBA  Board  of  Directors,  as  well  as  most  mainstream  law  enforcement  asso- 
ciations, voted  unanimously  to  endorse  Justice  Barkett's  retention.  She  subse- 
quently won  a  resounding  victory  indicating  the  electorate's  support  for  her  efforts 
on  behalf  of  the  citizens  of  Florida. 


376 

It  is  our  hope  that  after  careful  consideration  of  her  record  you  will  agree  that 
Justice  Barkett  has  the  professional  experience,  personal  integrity  and  judicial  tem- 
perament to  serve  as  a  Federal  Judge.  We  respectfully  request  that  you  support  and 
vote  for  this  nomination. 
Sincerely, 

Robert  T.  Scully, 

Executive  Director. 

Senator  Simon.  There  are  other  things  here  that  I  could  enter  in 
the  record,  but  I  am  pleased  to  support  you.  I  think  your  response 
and  your  attitude  is  the  right  one.  I  think  you  will  make  an  excel- 
lent appellate  court  judge,  and  I  hope  we  have  the  wisdom  to  ap- 
prove your  nomination. 

Justice  Barkett.  Thank  you  very  much.  Senator. 

Senator  SiMON.  We  will  stand  in  recess  for  a  few  minutes. 

[Recess.] 

The  Chairman.  The  hearing  will  come  to  order. 

A  minor  departure  from  the  ordinary  way  of  proceeding,  we  have 
the  honor  and  the  privilege  of  having  a  former  colleague  and  a  very 
good  personal  friend,  now  the  CJovernor  of  the  State  of  Florida  here 
and  he  was  testifying  in  another  committee  down  the  road,  and  we 
invited  him  to  come  by. 

Welcome,  Governor.  It  is  good  to  see  you. 

STATEMENT  OF  HON.  LAWTON  CHILES,  GOVERNOR  OF  THE 

STATE  OF  FLORroA 

Governor  Chiles.  Thank  you,  Mr.  Chairman. 

I  am  delighted  to  be  here  and  say  that  you  are  looking  well.  Of 
course,  I  remember  when  you  were  a  boy  on  the  block.  [Laughter.] 

The  Chairman.  I  am  going  to  tell  a  story  on  you,  Lawton.  The 
first  day  I  sat  on  the  Senate  floor  with  you,  when  I  got  here,  I 
turned  to  you — and  you  may  remember — I  turned  to  you  and  I  said, 
"You  know,  how  long  did  you  spend  learning  the  Senate  rules?"  I 
had  the  book  in  my  drawer  there  of  the  Senate  rules.  You  looked 
at  me  and  said,  "Don't  worry  about  that  book."  I  said,  "Why  not?" 
I  said,  you  know,  you  have  Jim  Allen,  who  was  as  master  par- 
liamentarian, and  Robert  Byrd.  He  said,  "Look,  there  is  only  one 
rule  you  have  to  understand  here  to  do  business  in  the  Senate,  and 
it  is,  "I  ask  unanimous  consent."  If  you  get  it,  it's  fine,  if  you  don't, 
don't  try."  [Laughter.] 

Governor  Chiles.  Mr.  Chairman,  I  thank  you  and  am  delighted 
to  have  a  chance  to  be  here  and  to  speak  a  word  on  the  part  of 
Chief  Justice  Barkett.  She  is  Chief  Justice  now  of  our  State  su- 
preme court  system,  and  I  know  she  will  make  a  wonderful  circuit 
court  of  appeals  judge.  She  has  had  good  experience  in  Florida,  had 
lawyers  like  Chesterfield  Smith  and  some  others  that  she  has  had 
to  listen  to  in  arguments. 

The  Chairman.  Does  that  speak  to  her  tolerance  level? 

Governor  Chiles.  It  speaks  to  many  things.  But  I  think  she  has 
had  an  outstanding  judicial  career  in  Florida,  and  we  consider  her 
one  of  our  brightest,  and  I  certainly  hope  this  committee  and  the 
Senate  will  confirm  her. 

The  Chairman.  Thank  you,  Governor. 

The  truth  of  the  matter  is  the  thing  that  you  and  I  spent  most 
of  our  time  working  on,  even  though  we  sat  next  to  each  other  on 
the  Budget  Committee  for  years,  was  criminal  justice  matters,  and 


377 

you  were  one  of  the  people  in  our  party  who  was  always  pushing 
for  us  to  have  more  rational  approach  to  dealing  with  violence  in 
society,  and  you  have  a  hell  of  a  record  in  terms  of  being  tough  on 
crime  issues,  and  your  endorsement  here  today  is  taken  note  of, 
and,  at  least  for  my  part,  I  very  much  appreciate  it. 

I  welcome  you  and  thank  you  and  hope  you  stick  around,  if  you 
are  able  to.  I  know  you  have  got  a  thousand  things  to  do. 

Governor  Chiles.  Thank  you.  Senator. 

The  Chairman.  I  am  now  going  to  yield  to  our  colleague  from 
Maine  for  his  opportunity  to  question  the  nominee. 

Senator  Cohen.  Thank  you  very  much,  Mr.  Chairman. 

Governor  Chiles,  it  is  good  to  see  you  again.  In  fact,  I  took  one 
page  out  of  the  Governor's  book.  When  he  first  ran  for  the  Senate, 
he  walked  across  the  State  of  Florida.  He  was  good  enough  to  meet 
with  me  and  tell  me  how  he  did  it,  and  I  did  the  same  thing  in 
Maine.  We  triumphed  by  going  out  and  meeting  the  people. 

It  is  good  to  see  you  again.  Governor. 

Justice  Barkett.  Is  that  to  say  I  should  have  walked  to  Wash- 
ington, Senator?  [Laughter.] 

Senator  Cohen.  Not  at  this  time  of  the  year. 

I  was  interested  in  your  opening  remarks.  You  said  that  for  all 
the  things  you  have  done  right  in  your  life,  you  owe  it  to  the  advice 
of  your  family,  and  that  for  all  the  mistakes  you  have  made,  you 
assume  personal  responsibility.  As  you  said  that,  I  could  not  help 
but  remember  the  lines  that  go  something  like,  "In  my  life's  dying 
embers,  these  are  my  regrets,  when  I  was  right,  no  one  will  re- 
member, and  when  I  was  wrong,  no  one  will  forget."  You  will  find 
that  during  the  course  of  this  confirmation  hearing,  we  will  look  at 
when  we  think  you  were  wrong  and  omit  the  hundreds,  if  not  thou- 
sands, of  times  when  you  were  right. 

I  also  would  note  that  many  people  are  under  some  delusion 
about  the  court  system.  When  they  look  at  judges  and  justices  they 
see  black  robed  oracles  who  sit  in  quiet  chambers  alone  dispensing 
judicial  wisdom,  unencumbered  by  personal  views,  biases,  or  predi- 
lections. 

Of  course,  you  know  and  we  all  know  that  is  a  fiction.  Judges  are 
real  people,  and  they  are  brushed  by  the  wing  of  experience,  as  all 
of  us  are.  They  look  out  at  the  world  through  lenses  that  are 
clouded,  or  that  are  at  least  covered  by  a  thin  film  of  passion,  of 
preference.  It  is  a  measure  of  judicial  temperament  to  restrain 
those  emotional  components  that  make  us  human  beings. 

That  rigorous  discipline,  both  in  personal  behavior  and  profes- 
sional thinking,  distinguishes  those  who  wish  to  serve  on  the 
bench.  There  is  no  way  to  adhere  to  this  fiction  that  you  and  all 
the  others  who  come  before  us  are  looking  through  an  absolutely 
clear  lens  which  is  unencumbered  by  any  past  experiences.  In  Jus- 
tice Cardozo's  little  book,  "The  Nature  of  the  Judicial  Process" 
there  is  a  footnote  in  which  he  quotes  a  French  author  as  saying 
"In  the  final  analysis,  there  is  no  guarantee  except  the  personality 
of  the  judge." 

So  we  are  looking  at  the  personality  of  the  judge,  and  I  suspect 
that  the  people  of  Florida  have  already  done  that.  They  have 
looked  at  your  personality  very  closely  and  at  your  philosophy  and 
have  not  found  it  particularly  wanting.  I  would  like,  nonetheless. 


378 

to  at  least  explore  a  couple  of  issues  in  the  remaining  time  that  I 
have.  I  have  used  up  a  lot  of  it  just  making  an  observation.  But 
there  has  been  some  concern  about  the  death  penalty.  I  am  one  of 
the  few  members  of  this  committee  who  does  not  support  the  death 
penalty,  and  yet  I  found  some  of  the  reasoning  in  your  opinion  to 
be  curious.  I  would  like  to  look  at  the  case  of  Dougan  v.  State. 

As  I  understand  it,  you  joined  a  two-judge  dissent  to  the  court's 
affirmance  of  the  death  penalty  in  that  case.  Dougan  stabbed  and 
shot  a  random  17-year-old  victim  and  then  sent  the  victim's  mother 
a  tape  recording  describing  the  crime.  The  dissent  argued  that  it 
was  a  "social  awareness"  case  because  Dougan's  fixation  on  racial 
injustice,  while  misguided,  served  to  extenuate  the  murder.  That 
was  one  aspect  I  want  to  go  back  to  and  examine  in  a  moment. 

The  dissent  said — and  I  am  quoting — "the  victim  was  a  symbolic 
representation  of  the  class  causing  the  perceived  injustices."  The 
dissent  also  noted  that  Dougan,  an  intelligent,  respected  Well-edu- 
cated leader  in  the  black  community,  had  redeeming  social  values. 
Finally,  the  dissent  concluded,  that  the  death  penalty  was  not  mer- 
ited. I  would  like  to  examine  the  components  of  the  dissent. 

There  is  currently  a  case,  I  believe  in  New  York,  where  we  have 
an  individual  who  stepped  aboard,  a  subway  and  proceeded  to 
shoot  randomly,  killing  about  seven  people  and  wounding  more. 
This  apparently,  according  to  reports  I  have  read,  was  an  act  of 
outrage  against  a  society  that  has  discriminated  against  him  be- 
cause of  his  color  or  background.  There  seems  to  be  a  parallel  be- 
tween this  case  and  Dougan  v.  State.  I  want  you  to  talk  about  the 
language  used  in  the  dissent  where  the  individual  was  described  as 
being  respected,  intelligent,  well-educated,  and  a  leader  in  the 
black  community. 

Putting  aside  Dougan's  color  for  a  moment,  although  that  is  hard 
to  do  in  any  of  these  cases,  let  us  turn  it  around  and  say  that  the 
Defendant  was  someone  like  Ted  Bundy,  who  could  be  described  as 
an  intelligent,  well-educated,  leader  in  the  white  community.  As  I 
recall,  he  was  planning  to  run  for  Congress  on  the  Republican  tick- 
et. Fortunately,  we  were  spared  that  particular  congressional  race. 
I  suppose  you  could  say  that  he  was  an  intelligent,  well-educated, 
respected  leader  in  the  white  community  and  political  circles. 

What  was  the  rationale  in  Dougan  v.  State  as  to  whether  there 
will  be  similar  cases  in  which  the  social  awareness  factor  would  be 
a  determinant  in  your  mind. 

Justice  Barkett.  If  you  will  indulge  me  for  just  about  2  minutes, 
I  need  to  explain.  The  problem  in  dealing  with  individual  cases  is 
that  you  are  looking  at  them  from  the  perspective  of  that  one  case, 
instead  of  from  the  perspective  of  what  the  law  requires.  And  I 
need  to  make  a  couple  of  observations,  if  I  may,  about  that. 

The  death  penalty  jurisprudence  is  very  difficult.  The  facts  of 
cases — and,  frankly,  it  is  one  of  the  most  difficult  parts  of  my  job, 
reading  the  records  of  all  of  these  death  penalty  cases  which  have 
in  them  the  descriptions  of  acts  of  depravity  in  many  instances 
which  are  overwhelming.  And  the  natural  response  to  this  in  many 
people's  minds  is  that  the  death  penalty  should  be  applied  every 
time  a  murder  occurs,  and  certainly  in  some  in  which  the  way  the 
murder  is  perpetrated  is  perhaps  more  heinous  than  in  other  ways. 


379 

But  you  are  not  permitted  as  a  judge  to  respond  emotionally  ei- 
ther to  hatred  for  the  defendant  when  he,  in  fact,  has  been  con- 
victed of  their  heinous  crimes  or  in  sympathy  for  the  defendant  be- 
cause of  what  he  went  through.  What  you  are  required  to  do, 
though,  is  look  beyond  the  aggravating  factors  of  the  crime  and  not 
stop  there,  as  many  people  are  wont  to  do. 

The  U.S.  Supreme  Court  has  required  us,  in  its  regulations  and 
rules  as  it  has  been  reflected  in  the  cases,  to  look  not  only  at  the 
aggravating  factors,  but  then  we  must  look  to  the  mitigating  fac- 
tors that  may  make  this  case  not  eligible  for  the  death  penalty.  It 
has  nothing  to  do  with  the  culpability  of  the  defendant  in  a  moral 
sense.  It  has  nothing  to  do  with  his  conviction  or  the  fact  that  he 
should  be  punished  and  spend  his  entire  life  in  prison— which  is 
what  I  voted  for  in  Dougan,  incidentally.  But  it  has  to  do  with  the 
fact  that  you  must  consider  both  things  and  weigh  them  to  deter- 
mine if  someone  is  legally  culpable  sufficient  for  the  death  penalty, 
not  culpable  for  any  other  reason. 

So  that  when  you  look  at  what  we  are  looking  at  in  mitigating 
factors,  you  are  looking  at  things  which  the  Supreme  Court  has  re- 
quired us  to  look  at,  things  like  the  background  of  the  individual 
and  the  circumstances  of  the  crime  and  the  motivation  of  the 
crime.  In  looking  at  that,  the  dissent,  written  by  Justice  McDon- 
ald— and  I  also  as  an  aside  have  to  point  out  that  I  have  written 
hundreds  and  hundreds  of  cases  on  the  death  penalty.  Senator,  and 
I  have  no  problem  in  agreeing  with  Justice  McDonald's  dissent.  But 
the  words  that  he  used  were  not  mine.  They  were  Justice  McDon- 
ald's. 

But  when  we  are  talking  about  things  like  the  intelligence,  some- 
one who  is  well  educated,  someone  who  is  a  leader  in  the  commu- 
nity, and  then  the  motivation  which  led  him  to  commit  the  act — 
and  in  the  case  of  Dougan,  it  was  a  motivation  which  arose  out  of 
an  oppression  and  a  racial  injustice — ^you  have  to  weigh  it.  In  and 
of  itself,  clearly,  feeling  racially  oppressed  is  not  going  to  be  suffi- 
cient as  a  mitigating  factor.  I  think  you  have  to  look  at  the  whole 
picture  and  then  ultimately  decide  whether  or  not  it  is  appropriate. 

Senator  Cohen.  My  time  has  just  about  expired.  Even  though 
the  red  light  is  on,  I  will  sneak  in  one  more  question. 

Here  the  dissent  in  Dougan  v.  Slate  describes  the  defendant  as 
"intelligent,"  "well  educated,"  "a  leader,"  and  "respected."  If  I  were 
to  turn  that  around  and  say  unintelligent,  not  well  educated,  not 
a  leader,  and  not  respected,  would  that  have  an  influence  as  to 
whether  a  person  would  be  subject  to  the  death  penalty?  In  other 
words,  if  you  are  higher  up  on  the  scale  of  intelligence,  education, 
respect,  is  that  a  mitigating  factor  as  opposed  to  someone  who  is 

just  the  opposite?  „    ,  r> 

Justice  Barrett.  No.  In  fact,  I  have  written  a  case  called  Rogers 
which  delineates  how  you  look  at  mitigating  factors.  First  of  all, 
you  have  to  decide  if  the  evidence  supports  whatever  mitigating 
factor  is  asserted.  Second,  you  have  to  look  at  whether  a  mitigating 
factor  is,  indeed,  a  mitigating  factor.  An  average  intelligence  is  not 
a  mitigating  factor.  One  assumes — and  I  think  I  said  that  in  that 
case.  One  assumes  that  that  is  a  given.  Everybody  has  it  and, 
therefore,  it  cannot  be  used  as  a  mitigating  factor. 


380 

The  sense  that  it  was  used  in  this  opinion  by  Justice  McDonald 
was  in  taking  a  look  at  his  entire  record.  He  was  not  a  habitual 
offender.  He  had  not  a  long  criminal  record.  There  had  been  no  acts 
of  violence  prior  to  this  heinous,  horrible  act  that  he  committed. 
And  you  take  a  look  at  all  of  that  in  trying  to  understand  the  na- 
ture of  why  he  committed  this  act  and  whether  or  not  his  motiva- 
tion, in  conjunction  with  everything  else,  mitigated  it. 

I  also  have  to  tell  you  that  the  racial  climate  in  which  this  oc- 
curred— it  occurred  a  long  time  ago.  This  murder  occurred  in  the 
late  1960's,  early  1970's,  in  Jacksonville,  FL.  And  you  have  to  take 
a  look  at  that.  This  is  20  years  later.  I  am  not  sure  of  how  that 
would  play  out  under  a  given  set  of  circumstances  today.  And  I  also 
have  to  tell  you  that  this  was  a  very  close  case.  It  was  discussed 
very  extensively  in  several  conferences.  There  were  times  when  the 
position  which  I  took — when  I  took  a  position  different  from  the 
one  I  took  ultimately  in  the  dissent.  It  is  a  very  close  case.  I  cannot 
quarrel  with  a  conclusion  which  would  have  found  it  the  other  way. 
I  cannot  quarrel  with  the  majority  in  that  case.  I  can  understand 
it. 

Senator  COHEN.  Did  you  file  a  separate  dissent? 

Justice  Barkett.  No.  I  joined  Justice  McDonald's  dissent. 

Senator  COHEN.  I  am  way  over  my  time,  and  I  will  have  to  wait 
for  another  time  to  come  back. 

Justice  Barkett.  Sorry.  Thank  you. 

OPENING  STATEMENT  OF  SENATOR  THURMOND 

Senator  Thurmond.  Good  morning. 

Justice  Barkett.  Grood  morning,  sir. 

Senator  THURMOND.  How  are  you? 

Justice  Barkett.  Just  fine.  Thank  you. 

Senator  THURMOND.  Chief  Justice  Barkett,  I  would  like  to  dis- 
cuss the  case  of  Cruse  v.  State. 

Justice  Barkett.  Yes,  sir. 

Senator  Thurmond.  As  I  understand  from  the  trial  record.  Cruse 
loaded  an  assault  rifle,  a  shotgun,  a  pistol,  and  180  rounds  of  am- 
munition into  his  car,  and  began  driving  to  a  shopping  center.  On 
the  way,  he  fired  the  shotgun  at  a  14-year-old  boy  who  was  playing 
basketball  and  then  at  the  boy's  parents  and  brother. 

At  the  shopping  center,  he  shot  and  killed  two  shoppers  who 
were  leaving  a  grocery  store  and  wounded  a  third.  He  then  shot  at 
various  other  customers,  killing  one  and  wounding  another. 

When  Cruse  heard  sirens  approaching,  he  got  back  in  his  car  and 
drove  across  the  street  to  another  shopping  center.  When  Officer 
Ronald  Grogan  approached  in  police  car.  Cruse  turned,  inserted  a 
new  clip  into  his  rifle,  and  fired  eight  times  into  the  car,  killing  Of- 
ficer Grogan. 

Officer  Johnson  then  entered  the  parking  lot  and  exited  his  car. 
Cruse  shot  at  Officer  Johnson  and  wounded  him  in  the  leg.  Cruse 
then  headed  into  the  parking  lot  searching  for  the  wounded  officer. 
When  he  found  him,  he  shot  Officer  Johnson  several  more  times, 
killing  him. 

As  a  rescue  team  attempted  to  move  Officer  Grogan's  car  out  of 
Cruse's  line  of  fire,  Cruse  fired  several  shots  at  them  and  told  them 
to,  "Get  away  from  the  cop.  I  want  the  cop  to  die." 


381 

Cruse  then  entered  a  store  and  began  firing  at  people  trying  to 
escape.  He  killed  one  more  and  wounded  many  others.  He  then 
found  two  women  hiding  in  the  women's  dressing  room  and  held 
one  of  them  as  a  hostage  for  several  hours.  In  all,  Cruse  killed  6 
people  and  wounded  10  others. 

Cruse  was  found  guilty  of,  among  other  things,  six  counts  of  first- 
degree  murder.  The  jury  recommended  death  on  all  six  counts.  The 
trial  court  imposed  the  death  sentence  for  the  murders  of  Officers 
Grogan  and  Johnson.  By  a  vote  of  6  to  1,  the  Florida  Supreme 
Court  affirmed  the  convictions  and  the  death  sentences. 

Chief  Justice  Barkett,  in  your  lone  dissent,  you  voted  to  reverse 
the  convictions.  In  addition,  you  stated  that  the  death  sentence 
was,  in  any  event,  inappropriate  for  Cruse. 

Let  me  begin  with  the  second  part  of  your  opinion  where  you  con- 
clude that  even  if  the  convictions  were  to  be  upheld,  the  death  sen- 
tence was  in  any  event  not  warranted  and  should  be  reduced  to 
life.  You  conclude  that  the  cold,  calculated,  and  premeditated  ag- 
gravator  was  not  met.  In  particular,  you  concluded  that  Cruse  had 
the  pretense  of  moral  or  legal  justification  for  killings  because  the 
evidence  showed  that  Cruse  was  acting  in  response  to  his  delusions 
that  people  were  trying  to  harm  him.  But  as  the  majority  pointed 
out,  the  consensus  of  the  experts  who  testified  was  that  Cruse's  de- 
lusions related  to  a  fear  that  others  were  trying  to  turn  him  into 
a  homosexual,  not  a  fear  of  any  physical  harm. 

Chief  Justice  Barkett,  how  do  you  respond  to  this  suggestion  that 
your  argument  against  the  death  sentence  for  Cruse,  therefore, 
rests  on  a  serious  mischaracterization  of  the  evidence?  Do  you  also 
take  the  position  that  even  apart  from  what  you  see  as  a  pretense 
of  moral  or  legal  justification  there  was  insufficient  evidence  of 
heightened  premeditation  in  the  murders  of  two  police  officers? 

Chief  Justice  Barkett,  with  respect  to  the  murder  of  Officer 
Grogan,  the  evidence  shows  that  when  Officer  Grogan  approached 
in  his  police  car,  Cruse  turned  and  inserted  a  new  clip  into  his  rifle 
and  fired  eight  times  into  the  car,  killing  Officer  Grogan.  In  addi- 
tion, as  the  rescue  team  attempted  to  move  Officer  Grogan's  car  out 
of  Cruse's  line  of  fire.  Cruse  fired  several  shots  at  them  and  told 
them  to  "get  away  from  the  car.  I  want  to  kill  the  cop." 

Chief  Justice  Barkett,  with  respect  to  the  murder  of  Officer  John- 
son, the  evidence  shows  that  when  Officer  Johnson  entered  the 
parking  lot  and  exited  his  car.  Cruse  shot  him  and  wounded  him 
in  the  leg.  Cruse  then  headed  into  the  parking  lot,  searching  for 
the  wounded  officer.  When  he  found  him,  he  shot  Officer  Johnson 
several  more  times,  killing  him.  Again,  what  additional  facts  would 
be  needed  to  convince  you  that  Cruse  had  heightened 
premeditation? 

Now,  let  me  ask  you  a  question  about  your  vote  to  reverse 
Cruse's  convictions.  The  basis  upon  which  you  would  have  reversed 
the  conviction  was  the  prosecutor's  alleged  failure  to  make  avail- 
able to  Cruse  so-called  Brady  evidence.  Under  the  U.S.  Supreme 
Court's  ruling  in  Brady  v.  Maryland,  the  prosecution  must  provide 
the  accused,  upon  the  accused's  request,  material  evidence  in  its 
possession  that  is  favorable  to  the  accused. 

As  you  stated  in  your  opinion,  evidence  is  material  when  there 
is  a  reasonable  probability  that  had  the  evidence  been  disclosed  to 


382 

the  defense,  the  results  of  the  proceeding  would  have  been  dif- 
ferent. You  would  have  ruled  that  evidence  of  the  names  of  two 
mental  health  experts  the  prosecution  had  contacted  should  have 
been  turned  over  to  Cruse  and  that  the  failure  to  turn  over  this 
evidence  required  reversal  of  the  convictions  and  remand  for  a  new 
trial. 

In  your  opinion,  you  reject  the  majority's  opinion  that  this  evi- 
dence was  merely  cumulative.  In  addition,  you  state,  "I  do  not  be- 
lieve the  fact  that  other  experts  at  the  trial  expressed  the  same 
opinion  regarding  Cruse's  mental  state  is  a  pertinent  part  of  the 
inquiry  of  whether  or  not  a  Brady  violation  occurred." 

Chief  Justice  Barkett,  how  do  you  reconcile  your  position  that  it 
is  not  pertinent  under  Brady  for  evidence  that  is  merely  cumu- 
lative with  your  position  that  evidence  is  material  for  purposes  of 
Brady  only  if  there  is  a  reasonable  probability  that  disclosure  of 
the  evidence  would  have  led  to  a  different  result  at  trial? 

Now,  let  me  now  turn  to  Hodges  v. — would  you  care  to  respond 
on  that  before  I  go  to  another  case? 

Justice  Barkett.  OK,  sir.  Senator,  first  of  all,  I  am  trying  to  do 
this  in  the  order  in  which  you  asked.  I  certainly  can  agree  with  you 
that  there  is  no  moral  justification  for  the  actions  that  Cruse  took 
here,  as  there  is  no  justification  when  anybody  takes  a  human  life 
in  a  criminal  way,  however  it  is  done. 

What  I  tried  to  do.  Senator — and  I  want  to  again  reiterate,  I  do 
not  look  for  ways  to  avoid  the  law.  I  only  look  for  ways  to  apply 
the  law,  that  it  has  been  applied  prior  to  my  tenure  or  prior  to  the 
case  in  which  we  are  dealing. 

In  this  case,  the  concept  of  heightened  premeditation  and  the 
concept  of  no  moral  justification  felt  by  the  defendant  were  prin- 
ciples that  have  been  decided  by  other  cases  in  my  court,  and  what 
I  am  trying  to  do  is  apply  it  in  a  consistent  fashion.  There  was,  for 
example,  a  case  called  Banda — I  do  not  have  the  cite,  but  I  will  be 
glad  to  give  it  to  you — where  the  unanimous  court — I  think  it  was 
unanimous — said  that  even  in  a  case  where  there  was 
premeditation  of  the  kind  where  someone  dug  a  grave  prior  to  the 
execution,  something  of  that  nature,  that  because  in  the  mind-set 
of  the  person  he  felt  that  he  was  being  threatened  and  that  some- 
one was  going  to  come  after  him,  that  is  something  that  must  be 
taken  into  account. 

With  reference  to  the  heightened  premeditation,  we  struggled — 
it  is  interesting  when  you  are  trying  to  make  these  distinctions  be- 
tween aggravating  factors  and  how  to  deal  with  them.  Our  court 
struggled  very  mightily  in  many,  many  conferences  about  how  to 
differentiate  between  a  premeditated  murder  and  the  heightened 
premeditation  which  the  statute  requires  us  to  apply  in  aggravat- 
ing circumstances.  And  it  is  very  hard  to  draw  that  line. 

We  knew  that  the  U.S.  Supreme  Court  would  not  have  permitted 
us  to  apply  the  death  penalty  uniformly  for  premeditated  murder. 
The  U.S.  Supreme  Court  had  said  that  was  unconstitutional.  We 
then  had  to  decide,  well,  then,  if  we  cannot  apply  it  across  the 
board  for  premeditation  per  se  and  we  must  apply  the  aggravating 
factor  of  heightened  premeditation,  we  had  to  develop  a  way  of  de- 
fining this  heightened  premeditation  that  has  to  be  taken  into  ac- 
count. 


383 

There  are  many  cases  on  this  point,  and  what  I  was  trying  to  do 
in  Cruse  is  show  that  in  other  cases  in  which  the  same  kind  of 
thing  occurred,  the  result  had  been  different. 

With  reference  to  the  question  of  the  Brady  violation,  I  did  not 
view  it,  as  the  majority  did,  as  a  cumulative  thing  but  as  a  very 
significant  matter  that  all  of  the  State  doctors  also  agreed,  along 
with  the  defense  doctors,  or  in  essence  agreed  with  the  significant 
mental  disturbance  that  this  defendant  had.  And  ultimately,  as  to 
your  last  point  in  reference  to  a  dissent,  dissents  happen  very,  very 
seldom.  I  think  I  have  dissented  approximately  300  times  out  of 
3,500  times.  There  are  times,  however,  when  judges  differ,  but  we 
have  a  court  that  is  unanimous,  as  I  have  said,  approximately  70 
percent  of  the  time,  and  I  have  been  in  the  majority  approximately 
90  percent  of  the  time.  Therefore,  I  want  to  make  clear  that  a  se- 
lect— one  case,  whether  you  agree  with  it  or  not,  cannot  be  used  to 
fairly  examine  my  record.  And  I  have  no  hesitancy  in  applying  the 
law  which  has  been  established  before  I — applying  the  law  of  the 
death  penalty  both  federally  and  in  Florida,  Senator. 

Senator  Thurmond.  The  6-to-l  decision,  you  are  the  only  one 
that  dissented,  aren't  you? 

Justice  Barrett.  You  sound  like  my  brother.  Senator,  who  is 
here.  And  every  time  that  happens,  he  says,  "How  come  you  didn't 
agree  with  the  other  six?" 

Yes,  sir,  I  did,  but  I  am  pointing  out  that  my  dissents  are  very — 
are  rare  in  the  totality  of  the  case  law. 

Senator  Thurmond.  Now  let  me  turn  to  Hodges  v.  State.  As  you 
may  recall,  Billie  Ricks  was  a  20-year-old  woman  who  worked  as 
a  convenience  store  clerk.  She  complained  to  the  police  that  Hodges 
had  indecently  exposed  himself  to  her.  The  same  day  that  Hodges 
was  to  appear  at  a  hearing  on  the  indecent  exposure  charge,  he 
shot  Billie  Ricks  to  death  with  a  rifle  in  her  store's  parking  lot. 

The  jury  found  Hodges  guilty  of  first-degree  murder  and  rec- 
ommended that  he  be  sentenced  to  death.  The  trial  judge  found  two 
aggravating  circumstances.  First,  the  murder  was  committed  to 
disrupt  or  hinder  the  lawful  exercise  of  a  government  function  by 
eliminating  a  witness  to  a  pending  criminal  charge;  and,  second,  it 
was  committed  in  a  cold,  calculated,  and  premeditated  manner. 

The  trial  judge  further  found  that  the  aggravating  circumstances 
far  outweighed  any  mitigating  circumstances.  The  Florida  Supreme 
Court  by  a  vote  of  6  to  1  affirmed  Hodges'  death  sentence. 

In  a  one-paragraph  dissent,  you  first  stated  that  the  aggravating 
factors  of  witness  elimination  and  cold,  calculated,  and  premedi- 
tated are  so  intertwined  here  that  they  should  be  considered  as 
one.  You  then  found  that  Hodges'  mitigating  evidence — that  he  had 
no  significant  criminal  history  and  that  he  was  a  good  employee 
and  a  good  and  caring  husband  and  father — outweighed  the  aggra- 
vating evidence  and  made  the  death  penalty  inappropriate. 

Chief  Justice  Barkett,  I  do  not  understand  the  significance  of 
your  observation  that  the  two  aggravators  were  intertwined. 
Aggravators  arising  out  of  the  same  murderous  episodes  are  often, 
if  not  inevitably,  intertwined.  That  does  not  at  all  mean  they  are 
redundant.  Since  witness  elimination  and  the  cold,  calculated,  and 
premeditated  aggravator  involved  different  evils,  why  shouldn't  the 


384 

statutory  scheme  which  calls  for  them  to  be  counted  separately  be 
respected? 

Justice  Barkett.  Senator,  I  was  trying  to  apply  the  precedent  of 
my  court  which  prohibits  doubling  of  aggravating  factors  when  they 
refer  to  the  same  aspect  of  the  crime.  In  a  case  called  Cherry  v. 
State,  the  court  specifically  said  that  if  two  aggravating  factors  are 
based  on  the  same  aspect  of  the  criminal  episode,  they  have  to  be 
considered  as  a  single  aggravating  circumstanc.  There  is  significant 
jurisprudence  in  my  State  that  differentiates  between  aggravating 
factors. 

There  are  some  circumstances  where  you  can  have  two  aggravat- 
ing factors  if  they  are  derived  from  differing  aspects  of  the  crime, 
but  if  they — and  that  has  happened.  And  in  many  instances,  our 
trial  judges  will  write  in  their  death  penalty  orders  that  although 
it  may  be  this,  it  may  be  also  this,  I  considered  it  as  one.  So  that 
is  a  fairly  settled  aspect  of  Florida  jurisprudence. 

Senator  Thurmond.  Chief  Justice  Barkett,  I  would  like  to  dis- 
cuss the  case  of  McKinney  v.  State.  Franz  Patella,  a  resident  of  the 
Bahamas,  was  driving  a  rental  car  in  Miami  when  he  stopped  to 
ask  McKinney  for  directions.  McKinney  kidnapped  Patella,  stole 
his  car,  shot  him  multiple  times  with  a  shotgun,  robbed  him,  and 
dumped  him,  semiconscious,  in  an  alley.  Patella  had  seven  gunshot 
wounds  on  the  right  side  of  his  body  and  two  wounds  on  his  head. 
He  died  shortly  after  being  taken  to  a  hospital. 

McKinney  was  convicted  of  first-degree  murder  as  well  as  armed 
robbery,  armed  kidnapping,  grand  theft  auto,  and  other  offenses, 
and  was  sentenced  to  death.  The  trial  court  found  three 
aggravators:  the  murder  was  unnecessarily  heinous,  atrocious,  or 
cruel;  it  was  cold,  calculated,  and  premeditated;  and  it  was  commit- 
ted in  the  course  of  a  robbery  or  kidnapping. 

In  your  opinion  for  the  court,  you  reversed  the  death  sentence  on 
the  ground  that  two  of  the  aggravators  had  not  been  sufficiently 
proven.  In  your  words,  "While  it  is  true  that  the  victim  was  shot 
multiple  times,  a  murder  is  not  heinous,  atrocious,  or  cruel  without 
additional  facts  to  raise  a  shooting  to  the  shocking  level  required 
by  this  factor." 

Chief  Justice  Barkett,  it  seems  to  me  that  there  clearly  were  ad- 
ditional facts.  Besides  the  number  of  shots  that  made  this  shooting 
shocking,  it  is  worth  noting  that  the  whole  nation  has,  in  fact,  been 
shocked  by  similar  recent  incidents  occurring  in  the  Miami  area.  In 
this  case,  among  other  things,  the  victim  was  especially  vulnerable. 
He  was  lost  and  was  seeking  help.  In  addition,  he  was  dumped, 
semiconscious,  in  an  alley.  Why  did  your  opinion  ignore  these  facts 
in  determining  that  the  killing  was  not  shocking? 

Justice  Barkett.  Senator,  first  of  all,  I  must  note  that  this  is  a 
majority  opinion,  and  the  majority  of  the  court  concurred  in  analyz- 
ing the  case  as  we  did.  I  also  have  to  note  that  since  this  case,  we 
have  had  reversed  on  the  issue  of  heinous,  atrocious,  and  cruel, 
many,  many  Florida  cases  which  have  been  reversed  by  the  U.S. 
Supreme  Court. 

I  have  been  in  the  majority  several  times  on  this  question  of 
whether  or  not  the  facts  of  a  case  support  the  heinous,  atrocious, 
and  cruel  factor.  The  U.S.  Supreme  Court  told  us  to  take  a  better 
look  at  it,  reversed  a  lot  of  cases  which  we  have  subsequently  taken 


385 

a  look  at  under  Espinosa.  The  only  thing  I  can  suggest  to  you  is 
that  we  attempt  to  be  as  careful  as  we  can  in  applying  Supreme 
Court  precedent  to  the  cases  before  us,  and  I  believe  I  have  done 
so. 

Senator  Thurmond.  Chief  Justice  Barkett,  in  White  v.  State, 
White  was  convicted  of  robbing  a  small  grocery  store  and  shooting 
to  death  a  customer.  His  conviction  and  death  sentence  were  af- 
firmed on  appeal.  In  a  petition  for  post-conviction  relief,  White 
claimed,  among  other  things,  that  his  counsel  had  been  ineffective. 

The  Florida  Supreme  Court,  by  a  vote  of  5  to  2,  affirmed  the  de- 
nial of  his  petition.  In  particular,  the  court  addressed  in  detail  and 
found  meritless  White's  claim  of  ineffective  assistance  of  counsel. 

Your  entire  dissent,  joined  by  Justice  Cogan,  reads  as  follows:  "I 
cannot  concur  in  the  majority's  conclusion  that  appellant  received 
a  fair  trial  with  effective  assistance  of  counsel." 

Chief  Justice  Barkett,  did  you  not  feel  an  obligation  to  offer  any 
further  explanation  why  you  were  overturning  a  death  sentence 
that  had  been  recommended  by  the  jury,  that  had  been  imposed  by 
the  trial,  that  had  been  affirmed  on  direct  appeal,  that  had  been 
upheld  again  by  the  judge  considering  the  post-conviction  petition, 
and  by  your  supreme  court  colleagues  on  appeal? 

Justice  Barkett.  Senator,  one  of  the  most  important  constitu- 
tional duties  that  I  have  is  to  follow  the  Supreme  Court  dictates 
that  process  be  fair,  especially,  as  they  have  said,  when  the  death 
penalty  is  being  imposed,  the  ultimate  penalty  and  a  penalty  that 
cannot  be  corrected  at  a  time  after  it  has  been  applied. 

When  counsel  is  deficient  in  providing  the  assistance  of  counsel 
that  is  constitutionally  required  at  a  trial  to  make  that  determina- 
tion, I  felt  it  inappropriate  then  to  apply  the  death  penalty  if  one 
felt  that  the  counsel  had  not  been  adequate  and  had  not  been  com- 
petent in  providing  counsel  to  this  defendant. 

I  again  have  to  suggest  to  you  that  we  write — our  court  is  an  ex- 
tremely busy  court.  We  write  approximately  50  cases,  opinions,  per 
judge  per  year,  which  is  a  significant  number,  and  I  think  probably 
would  be  among  the  highest  outputs  of  State  supreme  courts  in  the 
United  States.  I  would  very  much  like  to  have  had  the  opportunity 
to  write  much  more  clearly  or  much  more  expansively  in  many, 
many  cases,  and  I  would  have  liked  to  have  had,  I  am  sure,  the 
opportunity  to  have  expanded  here.  But  time  constraints  some- 
times preclude  you  from  amplifying  any  further  than  that. 

Senator  Thurmond.  Chief  Justice  Barkett,  in  Engle  v.  Florida, 
Engle  and  another  man 

The  Chairman.  Senator,  excuse  me.  Before  you  go  on  that  case, 
which  is  fine  and  you  can  have  as  much  time  as  you  want.  Senator, 
can  you  give  me  an  idea  how  much  longer  this  line  will  go?  Because 
we  have  been  going  15  minutes  a  round,  and  you  are  over.  It  is 
fine,  though.  I  just  want  to  get  a  sense. 

Senator  Thurmond.  I  have  about  10  minutes,  10  or  12  minutes. 

The  Chairman.  Well,  I  would  ask  Senator  Grassley,  since  he  is 
next  in  order  to  question,  whether  he  minds  if  the  Senator  com- 
pletes his  line  of  questioning.  That  is  a  tough  spot  to  put  you  in. 

Senator  GRASSLEY.  I  would  rather  have  the  chairman  rule. 
[Laughter.] 


386 

The  Chairman.  Mr.  Chairman,  before  you  start  the  next  case, 
why  don't  we — why  don't  we  give  you  10  more  minutes? 

Senator  Thurmond.  Chief  Justice  Barkett,  in  Engle  v.  Florida, 
Engle  and  another  man  robbed  $67  from  a  convenience  store,  took 
the  female  cashier,  Eleanor  Cathy  Tolan,  from  the  store,  and  stran- 
gled and  stabbed  her  to  death.  A  four-inch  laceration,  likely  caused 
by  a  fist,  was  found  in  the  interior  of  the  victim's  vagina. 

The  jury  recommended  life,  but  the  trial  judge,  finding  four 
aggravators  and  not  mitigators,  sentenced  Engle  to  death.  By  a 
vote  of  6  to  1,  the  Florida  Supreme  Court  ruled  that  there  was  not 
a  reasonable  basis  for  the  jury's  life  recommendation  and  affirmed 
the  death  sentence. 

You,  in  a  two-sentence  dissent,  stated  without  any  further  expla- 
nation your  belief  that  the  record  adequately  supports  the  jury's 
recommendation  of  life  imprisonment. 

Again,  Chief  Justice  Barkett,  I  ask  you,  do  you  believe  that  this 
conclusory  statement  satisfies  your  obligation  to  provide  reasoned 
decision  making?  Another  6-to-l  decision. 

Justice  Barkett.  Yes,  sir.  Senator,  first  of  all,  the  basis  for  my 
dissent  was  in  a  prior  case  of  the  Florida  Supreme  Court,  Tetter  v. 
State,  which  is  well  known  in  Florida  jurisprudence,  and  it  specifi- 
cally provides,  as  I  pointed  out  in  my  dissent,  that — and  I  am 
quoting  from  the  Tetter  case  upon  which  I  relied — that  "in  order  to 
sustain  a  sentence  of  death  following  a  jury  recommendation  of  life, 
the  facts  suggesting  a  sentence  of  death  should  be  so  clear  and  con- 
vincing that  virtually  no  reasonable  person  could  differ." 

We  give  great  deference  in  our  State,  and  I  do  particularly,  to 
jury  determinations.  It  is  the  jury  that  is  the  conscience  of  the  com- 
munity that  has  heard  all  of  these  facts.  In  this  case,  a  jury  had 
heard  all  of  the  facts,  had  heard  all  of  the  mitigating  evidence,  and 
it  was  the  people  in  the  sense  of  the  jury  who  determined  that  the 
death  penalty  was  not  applicable  under  the  law  in  this  particular 
case. 

I,  therefore,  was  applying  the  Tetter  standard  to  the  case  in  ques- 
tion, and,  again,  in  reference  to  your  dissents,  as  I  have  pointed 
out,  dissents  are  very  seldom  or  very  rare.  In  the  overwhelming 
number  of  cases,  I  am  in  the  majority,  approximately  90  percent. 

Senator  Thurmond.  Again,  six  of  your  colleagues  took  a  different 
position,  didn't  they? 

Justice  Barkett.  Pardon  me,  sir?  I  am  sorry. 

Senator  Thurmond.  Again,  six  of  your  colleagues  took  a  different 
position? 

Justice  Barkett.  Yes,  sir,  but  there  are  3,000-and-some  where 
we  did  not  differ. 

Senator  Thurmond.  Now  I  want  to  ask  you  about  another  case. 
In  Torres -Arboledo  v.  State,  Torres-Arboledo,  an  illegal  alien  from 
Colombia,  rounded  up  two  other  men  and  went  to  a  car  body  shop 
where  they  attempted  to  take  the  owner's  gold  chain.  When  the 
owner  resisted,  Torres-Arboledo  shot  him  to  death.  The  jury  rec- 
ommended a  life  sentence,  but  the  trial  judge,  finding  to 
aggravators  and  not  mitigators,  overrode  it  and  imposed  death. 

The  Florida  Supreme  Court  again — again,  I  repeat — by  a  6-to-l 
vote  affirmed  the  death  sentence.  Chief  Justice  Barkett,  in  a  three- 
sentence  dissent,  you  opine  that,  "The  standard  for  overriding  a 


387 

jury  life  recommendation  had  not  been  met  in  light  of  the  totality 
of  the  circumstances  presented,  it  simply  cannot  be  said  that  no 
reasonable  jury  could  have  recommended  life." 

Chief  Justice  Barkett,  if  you  are  going  to  overturn  a  death  sen- 
tence in  this  procedural  posture,  do  you  feel  that  you  have  some 
obligation  to  identify  the  circumstances  that  you  think  make  a  life 
sentence  reasonable? 

Justice  Barkett.  Well,  again.  Senator,  there  is  an  enormous  def- 
erence under  Florida  law  to  what  the  jury  says,  and  the  jury  who 
heard  the  facts  in  this  case  and  heard  all  of  the  testimony  pertain- 
ing both  to  the  aggravating  factors  and  to  the  mitigating  factors, 
the  people  decided  that  the  death  penalty  should  not  be  imposed. 

My  court  in  Tetter  v.  State,  a  decision  reached  prior  to  my  joining 
the  court,  has  said  clearly  that  it  is  only  in  extremely  rare  cases 
and  only  when  no  reasonable  person  can  differ  that  the  judge,  the 
trial  judge,  can  override  what  the  jury,  the  people,  have  suggested 
ought  to  be  done. 

There  have  been  cases  where  I  think  that  the  jury — ^that  no  rea- 
sonable person  can  differ,  and  in  those  cases,  I  have  voted  to  ap- 
prove the  override.  But  they  are  very,  very  rare  under  the  Tetter 
standard  that  we  have  set  forth. 

Senator  Thurmond.  Next  I  would  like  to  discuss  Hudson  v. 
State. 

The  Chairman.  Senator,  if  I  can  interrupt  for  a  second  so  I  un- 
derstand the  fact  situation,  in  that  case  the  jury  recommended  life; 
correct? 

Justice  Barkett.  Yes,  sir. 

The  Chairman.  The  judge  imposed  death.  You  dissented  and 
said,  in  effect,  the  jury  was  right. 

Justice  Barkett.  That  is  correct,  sir. 

The  Chairman.  OK.  I  just  wanted  to  make  sure  I  understood  it. 

Senator  Thurmond.  It  was  a  6-to-l  decision  affirming 

The  Chairman.  No,  I  know  that.  I  just 

Senator  Thurmond  [continuing].  Affirming  the  case.  Six  of  them 
went  one  way,  you  went  the  other  way. 

Justice  Barkett.  In  these  few  cases  that  you  are  asking  me 
about,  yes,  sir.  In  the  vast 

Senator  Thurmond.  Well,  I  have  got  a  lot  more  cases,  but  I  only 
have  time  to  go  into  about  one  or  two  more. 

Justice  Barkett.  All  right,  sir. 

Senator  Thurmond.  I  would  like  to  discuss  Hudson  v.  State.  Two 
months  after  breaking  up  with  his  girl  friend,  Hudson,  armed  with 
a  knife,  broke  into  her  home  during  the  night.  The  former  girl 
friend,  having  received  threats  from  him,  was  spending  the  night 
elsewhere,  but  her  roommate  was  at  home.  When  she  began 
screaming  at  him  to  leave,  Hudson  stabbed  her  to  death,  put  her 
body  in  the  trunk  of  her  car,  and  dumped  her  in  a  drainage  ditch 
in  a  tomato  field. 

Hudson  was  convicted  and  sentenced  to  death.  By  a  6-to-l  vote, 
the  Florida  Supreme  Court  affirmed.  In  your  brief  lone  dissent,  you 
relied  on  the  trial  court's  finding  that  Hudson  was  apparently  sur- 
prised by  the  victim  during  his  burglarizing  of  a  home,  and  that 
Hudson  therefore  was  unable  to  a  certain  extent  to  conform  his 


388 

conduct  to  the  requirements  of  law.  You  concluded  that  the  death 
penalty  was  disproportionate  to  the  offense. 

Chief  Justice  Barkett,  in  addition  to  the  findings  that  you  relied 
on,  the  trial  court  also  found  that  the  aggravating  circumstances 
outweighed  the  mitigating  circumstances  and  that  the  death  pen- 
alty was  warranted.  How  is  it  that  you  concluded  that  the  death 
sentence  was  disproportionate?  In  my  view,  anyone  who  breaks 
into  a  home  that  he  believes  to  be  occupied  should  expect  to  en- 
counter an  occupant.  I  just  do  not  see  how  an  intruder's  surprise 
should  count  seriously  as  mitigating. 

Justice  Barkett.  Senator,  I  think  that  your  comments  underlie 
the  response  that  one  feels  when  your  house  is  being  invaded  and 
these  heinous  acts  are  being  committed.  The  point  that  I  was  mak- 
ing earlier  was  that,  by  law,  we  are  not  permitted  by  the  U.S.  Su- 
preme Court  to  only  look  at  the  aggravating  factors  of  a  crime, 
even  though  emotionally  you  may  want  to  apply  the  death  penalty 
in  every  case  in  which  a  murder  is  committed. 

I  also  have  to  say  I  do  not  think  I  have  ever  said  that  the  death 
penalty  was  disproportionate  to  the  offense  in  any  of  these  cases. 
The  proportionality  aspect  of  my  decisions  has  to  do  with  the  rules 
set  forth  by  the  U.S.  Supreme  Court  that  says  that  we  must  apply 
the  death  penalty  is  an  evenhanded  and  equal  a  way  as  possible, 
and  that  we  must  engage  in  a  proportionality  review  to  determine 
how  the  facts  of  this  case  square  with  the  facts  of  another  case. 

We  have  often  held  on  the  Florida  Supreme  Court  in  cases  prior 
to  this  one  that  when  a  burglar  is  surprised  or  does  not  have  the 
ability  to  think  through  the  consequences  of  his  or  her  act,  it  cer- 
tainly does  not  make  him  unculpable.  He  is  certainly  liable  for  a 
life  sentence,  and  that  is  what  I  voted  for  in  this  case.  But  the  cul- 
pability aspect  of  it  which  goes  to  the  question  of  whether  or  not 
he  is  eligible  for  the  death  penalty  under  Supreme  Court  precedent 
has  a  different  context.  And  so  the  proportionality  issue  had  to  do 
with  other  cases  which  were  very  similar  to  this  one  and  in  which 
the  death  penalty  was  not  applied. 

Senator  Thurmond.  I  will  just  take  one  more  case.  I  could  go  on 
here  much  longer,  but  I  will  just  take  one  more  case. 

Justice  Barkett.  All  right,  sir. 

Senator  Thurmond.  Chief  Justice  Barkett,  in  Burr  v.  State,  Burr 
was  convicted  of  first-degree  murder  and  robbery  with  a  firearm 
and  was  sentenced  to  death.  His  conviction  and  sentence  were  af- 
firmed on  direct  appeal.  Following  the  signing  of  a  death  warrant, 
he  filed  a  motion  for  post-conviction  relief,  which  was  denied  by  the 
trial  court. 

By  a  6-to-l  vote,  the  Florida  Supreme  Court  affirmed  the  denial 
of  relief  In  dissent,  you  would  have  decided  for  Burr  based  on  an 
issue  that  you  conceded  had  not  even  been  raised  by  Burr:  the  con- 
sideration of  collateral  crimes  evidenced  during  the  sentencing 
phase. 

Chief  Justice  Barkett,  what  limits,  if  any,  do  you  believe  exist  on 
your  ability  to  assert  claims  on  behalf  of  convicted  criminals  that 
they  have  not  asserted  on  their  own? 

Justice  Barkett.  Senator,  the  first  observation  that  I  would 
make  is  that  the  U.S.  Supreme  Court  reversed  Burr  on  the  same 
basis  upon  which  I  dissented.  We  have  an  obligation  also  to  inde- 


389 

pendently  look  at  the  record.  This  is,  again,  estabHshed  by  prior 
case  law,  and  in  taking — we  have  a  separate  obligation  to  assure 
ourselves  that  the  death  penalty  has  been  appropriately  applied, 
and  we  have  a  separate  obligation  to  take  a  look  at  the  whole 
record. 

It  is  only  because  we  have  that  separate  obligation  which  the  Su- 
preme Court  has  considered  in  determining  that  our  death  penalty 
is  constitutional,  this  careful  scrutiny  that  we  give  to  the  death 
penalty.  In  this  case,  the  death  penalty  had  been  imposed  because 
of  a  prior  conviction  that  this  defendant  had.  It  was  determined, 
however,  that  this  prior  convict  had  been  vacated  and,  therefore, 
should  not  be  considered. 

The  U.S.  Supreme  Court,  when  it  took  Burr,  reversed  the  case 
and  said  look  at  it  in  light  of  Johnson,  which  is  a  case  which  pre- 
cisely said  that  you  cannot  impose  the  death  penalty  based  upon 
a  conviction  which  had  been  set  aside.  And  my  court,  when  it  was 
returned  from  the  U.S.  Supreme  Court,  then  vacated  the  sentence 
pretty  much  unanimously. 

Senator  Thurmond.  My  question  is  about  the  propriety  of  mak- 
ing an  argument  that  the  defendant  himself  did  not  make.  The  fact 
that  the  court  ultimately  vacated  the  sentence  shows  that  the  proc- 
ess worked  without  the  sort  of  extraordinary  judicial  intervention 
that  you  resorted  to. 

Given  the  strong  public  interest  in  making  sure  that  brutal  mur- 
derers do  not  get  back  on  the  street,  would  you  also  make  the  argu- 
ment on  behalf  of  the  State  under  like  circumstances? 

Justice  Barkett.  No,  I  think  I  understand.  You  are  concerned 
that  I  would  just  out  of  the  blue  pull  something  out  of  the  air  to 
make  a  ruling  upon,  and  that — because  this  language  suggests  that 
we  have  an  independent  obligation.  My  response  to  that.  Senator, 
in  different  kind  of  cases  perhaps  not,  certainly  not.  In  this  kind 
of  case,  however,  there  is  prior  case  law  which  requires  me  as  a 
supreme  court  justice,  as  a  court  of  last  resort,  not  to  apply  the 
death  penalty  unless  we  have  done  an  independent  review.  And  I 
think  you  are  going  to  find  many  of  our  cases  where  we  have  stated 
in  the  majority.  We  have  looked  at  all  of  the  record,  and  even 
though  there  are  lots  of  issues  that  were  not  raised,  we  have  looked 
at  them  and  we  have  satisfied  ourselves  that  the  death  penalty  has 
been  appropriate. 

If  we  do  not  do  this,  the  death  penalty,  in  my  judgment — if  we 
do  not  provide  this  kind  of  scrutiny,  the  death  penalty  would  be 
deemed  unconstitutional  by  the  U.S.  Supreme  Court. 

Senator  Thurmond.  Well,  I  am  not  going  to  go  any  further.  I  be- 
lieve my  time  is  up.  I  just  want  to  say  that  case  after  case  after 
case  after  case,  6  to  1,  six  other  judges  going  one  way,  you  going 
the  other  way  that  takes  up  for  the  defendant.  That  is  a  strange 
record. 

Thank  you. 

The  Chairman.  Thank  you.  Senator. 

I  am  going  to  switch  back  to  the  Democrats  for  a  second  so  that 
an  unrelenting  charge  has  at  least  another  perspective  put  into  it, 
and  I  am  only  going  to  take  5  minutes  of  the  time. 

Senator  Grassley.  How  much  time  are  you  going  to  take? 

The  Chairman.  Five  minutes. 


390 

Let  me  put  in  focus  about  unrelenting — I  mean  this  case  after 
case  after  case  after  case.  In  the  one  case  the  Senator  from  South 
Carohna  cited,  the  one  involving  the  fellow  who  was  involved  in  the 
indecent  exposure  and  then  came  back  and  blew  the  person  away, 
if  I  am  not  mistaken,  the  Supreme  Court  remanded  that  back  to 
you  all,  didn't  it? 

Justice  Barkett.  Yes,  it  did. 

The  Chairman.  How  did  you  rule  when  they  remanded  it  back? 

Justice  Barkett.  We  vacated  the  death  sentence.  Senator. 

The  Chairman.  You  vacated  the  death  sentence. 

I  am  going  to  come  back  to  a  number  of  cases,  that  case  where 
the  testimony  indicated  that — ^this  is  the  case  of  Robinson  v.  the 
State  of  Florida,  where  the  testimony  indicated  that  Robinson 
pulled  up  behind  St.  George's  parked  car — I  am  reading — and  or- 
dered her  into  his  car  at  gunpoint,  handcuffed  her,  drove  to  the 
cemetery  where  he  sexually  assaulted  her  on  the  hood  of  his  car, 
then  he  ordered  Fields,  the  co-defendant,  to  do  the  same,  and 
Fields  complied.  Afterwards,  Robinson  expressed  concern  that  she 
could  identify  them.  He  then  walked  up  to  her,  put  a  gun  to  her 
cheek.  Fields  heard  a  shot,  saw  St.  George  fall,  and  watched  Robin- 
son stand  over  her  and  fire  a  second  shot  at  her. 

How  did  you  rule  on  that  case? 

Justice  Barkett.  I  think  I  voted  to  affirm  the  death  penalty. 
Senator. 

The  Chairman.  You  did. 

Another  heinous  case:  in  the  late  morning  or  early  afternoon  be- 
fore authorities  found  the  body  of  Angela  Baird  in  the  tall  grass  in 
a  field  behind  her  home.  Her  body  was  lying  on  its  right  side, 
gagged,  hog-tied  by  the  wrists  and  ankles;  the  body  was  nude  from 
the  waist  down.  Lying  nearby  were  her  school  books,  jacket,  purse, 
and  empty  paper  lunch  bag.  The  autopsy  revealed  that  the  victim's 
left — and  I  will  not  read  the  rest  of  it. 

How  did  you  rule  in  that  case? 

Justice  Barkett.  The  mitigating  factors  did  not  outweigh  the  ag- 
gravating factors  in  that  case,  and  I  voted  to  affirm  the  death  pen- 
alty. 

The  Chairman.  I  can  list  tens  of  these  cases  like  that. 

Justice  Barkett.  Two  hundred  and  sixty-some. 

The  Chairman.  And  not  all  as  grisly  as  these,  but  focusing  on 
the  grisly  facts  of  an  isolated  case  in  which  a  nominee  considered 
the  application  of  the  death  penalty  I  think  makes  it  impossible  to 
fairly  and  accurately  consider  your  judicial  philosophy.  An  experi- 
enced and  conscientious  judge,  no  matter  how  liberal  or  conserv- 
ative, must  sometimes  vote  to  reverse  a  conviction  or  sentence  in 
a  case  involving  heinous  and  atrocious  crimes. 

Consider  the  case  of  Justice  Scalia,  never  thought  to  be  a  wacko 
liberal  by  anybody  that  I  know  of,  and  let  me  read  one  of  his  cases 
in  isolation.  In  the  1987  U.S.  Supreme  Court  case  of  Hitchcock  v. 
Bugger,  originally  a  Florida  case.  Justice  Scalia  wrote  a  unanimous 
U.S.  Supreme  Court  opinion  reversing  the  death  sentence  of  a  man 
convicted  of  strangling  his  13-year-old  step-niece.  The  defendant 
confessed  that  he  had  killed  his  step-niece  because  she  had  threat- 
ened to  tell  her  parents  about  him  having  had  sexual  intercourse 


391 

with  him.  In  other  words,  the  defendant  killed  the  girl  to  cover  up 
the  statutory  rape  of  his  step-niece. 

The  jury  found  the  defendant  guilty  and  recommended  the  death 
sentence,  and  the  trial  judge  agreed.  Eleven  years  after  the  crime, 
however,  the  Supreme  Court  overturned  the  sentence  because  the 
trial  court  had  considered  only  listed  statutory  mitigating  factors. 
Justice  Scaha  wrote  for  the  Court,  holding  that  the  Florida  trial 
court  had  erred  in  failing  to  consider  that  the  murderer's  father 
had  died  of  cancer,  that  the  murderer  had  sniffed  gasoline  fumes 
as  a  child,  causing  his  mind  to  wander,  that  he  was  one  of  seven 
children  in  a  poor  family,  and  that  he  was  a  fond  and  affectionate 
uncle. 

Despite  the  decision  by  both  the  trial  court,  the  judge  and  jury, 
that  the  killer  deserved  to  be  sentenced  to  death.  Justice  Scaiia, 
writing  for  a  unanimous  court,  reversed  because  he  had  sniffed 
fumes  as  a  kid,  his  mind  wandered,  he  was  one  of  seven  poor  chil- 
dren, et  cetera.  And  he  reversed. 

The  test  being  applied  to  you,  judge,  could  be  applied  to  any 
judge.  Justice  Scalia's  opinion  in  the  Hitchcock  case  illustrates  how 
this  kind  of  exercise  does  not  permit,  in  my  view,  an  accurate  por- 
trayal of  a  nominee's  record.  Rather  than  considering  the  gruesome 
facts  of  every  death  penalty  case  in  which  the  nominee  is  voted  to 
overturn,  I  think  your  record  should  be  viewed  in  context. 

Your  record  on  the  death  penalty  is  clear.  You  voted  to  affirm  the 
death  penalty  in  over  200  cases — 270,  I  think  you  said — including 
cases  in  which  a  majority  of  the  U.S.  Supreme  Court  had  agreed 
that  the  death  sentence  should  be  overturned,  Espinosa  v.  Florida 
and  Schlur  v.  Florida  in  1982. 

So  I  cite  that  not  in  any  way  to  criticize  Justice  Scaiia.  He  is  a 
fine  Justice.  He  is  considered  one  of  the  most  brilliant  Justices  to 
serve  on  the  Court.  He  is  considered  to  be  the  epitome  of  the  con- 
servative point  of  view  on  the  Court.  But  he  was  bound  by  the  law. 
And  when  I  get  a  chance  to  question  again,  I  am  going  to  ask  you, 
because  I  do  not  think,  quite  frankly.  Judge,  you  have  had  an  op- 
portunity to  clearly  explain  the  Florida  law  as  it  relates  to  mitiga- 
tion and  aggravation  and  what  you  must  consider. 

I  now  yield  to  my  friend  from  Iowa. 

OPENING  STATEMENT  OF  SENATOR  GRASSLEY 

Senator  GRASSLEY.  Well,  do  not  speak  for  me  when  you  say 
Scaiia  satisfied  all  conservatives. 

The  Chairman.  No,  no,  no,  no.  I  did  not  say  he 

Senator  GRASSLEY.  Because  on  the  point  of  congressional  intent, 
he  will  not  look  beyond  the  statute,  and  I  think  that  it  is  wrong 
for  anybody  sitting  on  the  Supreme  Court  not  to  try  to  determine 
some  congressional  intent 

The  Chairman.  Senator,  for  the  record,  let  me  state,  if  I  said  it 
I  did  not  mean  it.  What  I  meant  to  say  was — I  thought  I  said  that 
Justice  Scaiia  represents  and  is  thought  to  represent  the  conserv- 
ative view  in  the  Court,  not  that  all  conservatives  agree  with  Jus- 
tice Scaiia. 

Senator  GRASSLEY.  Well,  then,  he  does  not  represent  my  conserv- 
ative view  on  the  Supreme  Court  when  he  does  not  take  congres- 
sional intent  into  account. 


392 

The  Chairman.  I  happen  to  agree  with  you  on  the  merits  of  that 
position.  That  makes  us  both  moderates. 

Senator  Grassley.  Well,  I  am  glad  you  are  moving  to  the  center. 
I  am  not.  [Laughter.]  I  want  to  talk  about  what  you  and  I  visited 
about  a  little  bit  in  my  office  the  other  day.  One  of  those  things 
was  obscenity  and  child  pornography.  I  would  specifically  like  to 
talk  to  you  about  your  opinion  in  the  Stall  case.  For  the  audience, 
this  was  a  constitutional  challenge  to  the  conviction  of  several  por- 
nographers  under  Florida's  RICO  statute  for  predicate  violations  of 
the  State  obscenity  laws. 

The  majority  of  your  court  upheld  the  constitutionality  of  the  ob- 
scenity law.  You  dissented,  and  you  wrote  about  the  role  of  judges 
when  there  is  a  collision,  in  your  words,  "a  collision  between  legal 
principles  and  personal  views  of  morality."  I  think  that  is  a  perfect 
description  of  the  issue  that  we  are  presented  with  in  this  hearing, 
your  ability  to  apply  the  law  and  leave  moral  and  political  ques- 
tions to  the  political  branches. 

In  our  meeting  Tuesday,  you  expressed  your  resolution  never  to 
let  your  own  views  affect  your  application  of  the  law.  On  its  face, 
I  cannot  find  any  fault  with  that  statement.  But  your  dissent  in 
Stall  worries  me  because,  as  I  understand  it,  it  shows  a  tendency 
towards  judicial  activism.  Your  decision  seems  infected  with  moral 
relativism.  You  say  the  definition  of  obscenity  is  relative,  so  the 
State  cannot  outlaw  it. 

I  personally  believe,  and  the  Supreme  Court  has  held,  a  commu- 
nity can  outlaw  foul  and  degrading  obscenity  consistent  with  the 
U.S.  Constitution.  In  other  words,  obscenity  is  not  protected 
speech.  In  Stall,  you  said  there  is  "a  basic  legal  problem  with  the 
criminalization  of  obscenity,  that  it  cannot  be  defined."  You  argued 
that  because  two  people  might  disagree  on  what  is  obscene  to 
them,  we  cannot  outlaw  material  the  community  considers  obscene. 

Do  you  believe,  as  you  suggested  in  Stall,  that  it  is  unconstitu- 
tional for  States  to  enact  any  laws  prohibiting  obscenity? 

Justice  Barkett.  First  of  all.  Senator,  I  think  it  is  clear  that 
States  can  pass  laws  prohibiting  obscenity.  If  I  may,  I  would  like 
to  go  back  to  the  question  of  personal  views,  though.  If  I  had  my 
druthers  and  I  were  applying  personal  views,  there  would  be  much 
in  the  speech  that  I  have  heard  in  the  last  6  months  or  so  that  I 
would  outlaw  and  regulate.  I  think  that  one  does  not  apply  one's 
personal  views.  There  would  be  much  in  the  pornographic  area  that 
I  do  not  think  would  be,  any  question,  in  terms  of  personal  views, 
would  be  offensive  in  terms  of  what  that  has  done  to  the  victimiza- 
tion of  children  and  the  victimization  of  women.  So 

Senator  Grassley.  When  you  talk  about  your  own  views,  and 
you  are  talking  about  the  last  6  months,  are  you  talking  about  the 
direction  the  Canadian  Supreme  Court  is  taking  in  that  area? 

Justice  Barkett.  No,  I  am  not  familiar  with  that.  Senator.  I  am 
just  saying  that  there  is  much  in  free  expression  that  one  does  not 
agree  with,  and  were  one  to  apply  one's  personal  views,  one  would 
not  be — one  would  not  necessarily  be  consistent  with  the  first 
amendment  and  the  requirements  of  the  first  amendment. 

But,  that  aside,  let  me  direct  my  attention  to  Stall,  which  is 
what  you  have  asked  about.  Stall 


393 

Senator  Grassley.  Basically  I  want  to  know  if  we  can  outlaw  ob- 
scenity based  on  community  standards. 

Justice  Barrett.  Yes.  The  Federal 

Senator  Grassley.  Flat  out  yes? 

Justice  Barrett.  Flat  out  yes.  The  Federal  courts  have  said  so 
in  the  Federal  system,  and  the  Florida  courts  have  said  so  in  the 
Florida  system  in  cases  in  which  I  have  concurred.  Stall  dealt  with 
a  specific  statute  defining  sexual  conduct.  It  had  language  in  it 
which,  in  my  judgment,  was  very  ambiguous  and  which  fell  afoul 
of  the  Florida  constitutional  provision  to  make  it  clear  to  people 
what  acts  they  were  engaging  in  that  would  be  criminal  and  would 
be  criminally  prosecuted. 

In  a  later  case  called  Schmitt,  the  Florida  Supreme  Court  had 
before  it  the  very  same  statute,  and  in  that  case  the  Florida  Su- 
preme Court  agreed  with  me  that  the  offending  language  was  un- 
clear. And  when  they  agreed  that  that  part  should  be  taken  out  of 
the  statute,  I  then  concurred  with  the  majority  of  the  court  in  up- 
holding the  statute  as  constitutional  under  Florida's  law. 

Senator  Grassley.  Well,  in  the  Stall  case,  the  majority  opinion 
was  guided  by  the  U.S.  Supreme  Court's  obscenity  cases.  And  your 
dissenting  opinion,  was  quite  explicit.  You  said  that  the  criminal- 
ization of  obscenity  "runs  counter  to  every  principle  of  notice  and 
due  process  in  our  society,"  which  would  seem  to  include  the  U.S. 
Constitution. 

I  would  like  to  have  you  clarify  that  specific  statement. 

Justice  Barkett.  Senator,  I  am  sorry.  I  think  maybe  you  were  not 
in  the  room  when  I  was  explaining  how  one  views  these  things. 
And  when  one  is  looking  as  a  Florida  judge  in  cases  which  impact 
some  values  which  the  Florida  Constitution  has  expressly  valued — 
for  example,  the  right  of  privacy  in  our  Constitution,  which  is  an 
added  concept  to  the  concepts  of  due  process  and  first  amendment 
issues.  When  one  is  looking  at  cases  from  that  perspective,  one 
looks  at  them  differently  than  one  looks  at  Federal  cases  which  are 
governed  only  by  Federal  laws. 

There  is  no  question  that  you  cannot  take  one  part  of  my  view 
in  Stall  and  not  look  at  the  same  judgment  or  the  same  view  in 
Schmidt.  And  in  both  those  cases,  the  same  statute  was  being  de- 
cided, the  same  statute  was  being  considered.  In  one  case,  it  had 
this  language  that  defined  or  attempted  to  describe  conduct 
which — well,  those  of  us  that  watch — I  didn't,  but  those  of  us  that 
had  the  opportunity  to  watch  the  Super  Bowl  could  have  deemed 
some  of  the  conduct  there  violative  of  this  statute. 

When  one  takes  a  look  at  language  which  could  have 
criminalized  very  innocent  behavior  and  then  take  a  look  at  the 
very  same  statute  later  in  Schmidt,  where  that  language  was  de- 
leted or  omitted  or  found  to  be  unconstitutional  by  the  court,  and 
with  which  I  concurred,  I  do  not  think  you  can  fairly  say  that  I 
have  held  that  no  State  regulation  of  pornography  is  possible. 

Senator  Grassley.  There  is  an  entirely  different  standard  on 
child  pom  than  there  is  on  obscenity,  and  you  are  comparing  a 
child  pom?  with  an  obscenity 

Justice  Barrett.  The  definition  of  the  conduct  is  the  same,  Sen- 
ator, in  my  judgment. 


394 

Senator  Grassley.  Does  your  statement,  then,  that  criminal  ob- 
scenity laws,  "run  counter  to  every  principle  of  notice  and  due  proc- 
ess in  our  society,"  apply  only  to  Florida  law? 

Justice  Barkett.  It  had  to  do  with  an  attempted  definition  of 
criminal  conduct  in  the  statute  in  question  which  really  was  not 
clear.  Senator.  And  later  on,  when  the  court  took  a  second  look  at 
it,  they  decided  that  that  language  was,  indeed,  ambiguous,  and 
over-broad  and  could  not  be  appropriately  defined  and  eliminated 
it  from  the  statute.  And  at  that  point,  I  concurred  with  the  con- 
stitutionality of  that  statute. 

Senator  Grassley.  Well,  I  fail  to  see  how  the  possibility  that 
some  people  might  disagree  about  what  is  obscene  undermines  our 
ability  to  declare  that  something  violates  contemporary  community 
standards  under  the  test  developed  by  the  Supreme  Court.  There 
are  organized  groups  who  argue  that  child  pornography  should  not 
be  permitted,  and  that  does  not  mean  that  a  State  cannot  prohibit 
child  pornography. 

In  the  criminal  law  generally,  many  laws  have  a  subjective  as- 
pect. Reasonable  people  can  probably  disagree  about  what  con- 
stitutes criminal  negligence  or  child  neglect,  but  that  does  not 
mean  that  those  laws  are  unconstitutional.  So  how  does  subjectiv- 
ity make  the  statute  in  the  Stall  case  unconstitutional? 

Justice  Barkett.  I  think,  Senator,  again,  when  you  view  these 
cases,  you  are  looking  within  the  context  of  Florida  constitutional 
values  and  expressions  of  policy  and  the  Florida  Legislature  as  well 
as  the  prior  cases  under  the  Florida  law. 

When  a  legislature  attempts  to  pass  a  law,  one  has  to  under- 
stand what  law  is — ^what  actions  are  being  criminalized.  You  must 
be  able  to  understand  the  general  nature  of  the  act  that  you  are 
prohibited  or  going  to  be  prohibited  from  engaging  in.  Therefore, 
under  our  State  laws  and  constitution,  one  has  to  very  clearly  de- 
lineate what  those  are. 

In  this  statute,  in  the  area  of  pornography,  the  statute  applied 
the  Miller  test,  which  is  analogous  to  the  Federal  test,  but  in  this 
statute  they  went  further,  and  they  attempted  to  define  something 
as  obscene  which  was  ambiguous  and  which  could  be  susceptible  to 
differing  interpretations. 

When  we  looked  at  it  from  that  perspective,  it  was  my  judgment 
that  under  Florida's  law  that  language  was  ambiguous,  under  some 
due-process  considerations,  taking  into  account  the  Florida  right  of 
privacy  perspective,  and  therefore,  it  failed  to  pass  constitutional 
muster. 

When  later  on  we  agreed  that  that  language  was  ambiguous  and 
took  it  out  of  the  statute,  I  upheld  the  statute.  Ultimately  the  only 
thing  I  can  suggest  to  you  is  that  there  is  no  question  that  Federal 
law  has  prohibited  pornography  and  has  permitted  States  to  regu- 
late pornography  and  to  prohibit  it.  And  whatever  the  Federal  law 
is  is  what  I  would  then  be  governed  by  on  the  Eleventh  Circuit 
Court  of  Appeals.  And  it  is  that  law  with  which  I  would  comply 
without  any  hesitation  or  question. 

Senator  Grassley.  Again,  I  will  state,  the  majority  in  Stall 
based  their  decision  on  decisions  of  the  U.S.  Supreme  Court  and 
the  Federal  Constitution.  You  rejected  that  analysis  in  your  dis- 
sent, which  was  very  short:  You  also  joined  in  that  same  case  with 


395 

Judge  Kogan,  and  enthusiastically  endorsed  that  dissent.  That 
opinion  argued  that  we  cannot  prohibit  obscenity,  even  its  produc- 
tion and  distribution,  because  we  might  interfere  with  the  fun- 
damental right  to  consume  obscenity. 

Justice  Barrett.  I  think  that  Justice  Kogan's  dissent  is  replete 
with  citations  to  Florida  cases  and  Florida  law.  Senator.  All  I  am 
suggesting  is  that  you  look  at  these  cases  very  differently  when  you 
are  on  the  State  supreme  court  of  last  resort  and  when  you  are  re- 
quired to  follow  Federal  precedent.  And  I  do  not  think  there  is  any- 
thing in  my  judicial  career  which  would  indicate,  from  the  time  I 
was  a  trial  judge,  an  intermediate  appellate  court  judge,  as  well  as 
on  this  court,  that  would  indicate  that  I  would  fail  to  follow  prece- 
dent as  I  saw  it. 

Senator  Grassley.  Well,  let  me  read  you  a  paragraph  that  comes 
from  the  U.S.  Supreme  Court's  decision  in  Paris  Adult  Theater, 
that  the  majority  used  in  Stall.  "A  man  may  be  entitled  to  read  an 
obscene  book  in  his  room  or  expose  himself  indecently  there.  But 
if  he  demands  a  right  to  obtain  the  book  and  pictures  he  wants  in 
the  market  and  to  gather  in  public  places,  discreet,  but  accessible 
to  all,  with  others  who  share  his  taste,  then  to  grant  him  his  right 
is  to  affect  the  world  about  the  rest  of  us  and  to  impinge  on  other 
privacies:  Even  supposing  that  each  of  us  can,  if  he  wishes,  effec- 
tively avert  the  eye  and  stop  the  ear  (which  in  truth  we  cannot), 
what  is  commonly  read  and  seen  and  heard  and  done  intrudes 
upon  us  all,  wanted  or  not." 

You  say  that  you  look  to  the  U.S.  Supreme  Court  for  persuasive- 
ness and  guidance,  even  when  applying  Florida  law,  I  think  the 
quote  illustrates  well  how  obscenity  harms  us  all.  By  joining  Kogan 
you  were  endorsing  his  view  that  their  quote  from  the  Paris  case 
was  wrong. 

Would  you  agree  that  the  Federal  Constitution  does  not  griaran- 
tee  a  right  to  produce  and  distribute  obscene  pornography  in  con- 
trast to  the  right  you  and  Justice  Kogan  found  in  the  Florida  Con- 
stitution? 

Justice  Barkett.  I  would  agree  that  the  Miller  test  as  estab- 
lished by  the  U.S.  Supreme  Court  is  the  test  that  must  be  applied 
in  a  Federal  context  and  that  I  would  apply  it  with  no  hesitation 
if  I  have  the  opportunity  to  serve  in  the  Federal  system,  absolutely. 

Senator  Grassley.  Well,  how  do  you  explain  your  rejection  of  the 
analysis  in  the  Paris  Adult  Theater  that  I  just  quoted  to  you? 

Justice  Barrett.  As  I  said.  Senator,  what  happens  is  you  look 
at  things  in  the  perspective  in  which  you  are,  and  the  perspective 
in  which  we  sit  as  a  court  of  last  resort,  which  has  a  constitution, 
which  values  privacy  so  much  that  it  expressly  states  it  and  that 
has  a  different  analysis  of  such  things  as  substantive  due  process 
and  procedure  and  equal  protection,  you  look  at  it  from  a  different 
perspective. 

What  I  can  tell  you  is  that  when  I  am  on  the — oh,  oh,  I  am  so 
sorry.  If  I  have  the  opportunity  to  serve  on  the  Eleventh  Circuit 
Court  of  Appeals,  when  you  are  looking  at  it  from  the  perspective 
of  a  Federal  judge,  you  are  looking  at  it  only  from  the  perspective 
of  Federal  law.  And  it  is  a  different  perspective. 

The  Chairman.  May  I  ask  a  question.  Senator?  Because  I  want 
to  make  sure  I  understand.  If  article  I,  section  23  of  the  Florida 


396 

Constitution  which  provides — and  I  will  quote  it — "Every  natural 
person  has  the  right  to  be  let  alone  and  free  from  governmental  in- 
trusion in  his  private  life  except  as  otherwise  provided  herein." 
Were  there  not  such  a  provision  in  the  Florida  Constitution,  would 
you  have  ruled  differently  in  the  case  in  question? 

Justice  Barkett.  If  we  were  governed  by  Federal  law,  I  would 
have  applied  Federal  law,  without  any  question. 

The  Chairman.  Would  you  be  governed  by  Federal  law  without 
the  Florida  Constitution  provision? 

Justice  Barkett.  Assuming  there  were  no  other  constitutional 
provision  in  Florida  impacted,  of  course,  or  Florida  law. 

The  Chairman.  Thank  you.  I  am  sorry  for  the  interruption. 

Senator  Grassley.  Well,  if  the  right  to  consume  obscene  pornog- 
raphy also  protects  the  production  and  distribution  of  obscenity, 
does  that  mean  that  I  or,  even  worse,  my  grandchildren,  cannot  be 
protected  from  constant  bombardment  in  the  convenience  stores,  on 
the  newsstands,  on  the  theater  fronts,  or  any  other  public  place 
where,  obscene  acts  are  being  graphically  depicted? 

Justice  Barkett.  Senator,  I  have  no  question  that  Congress  can 
regulate  or  prohibit  pornography  or  obscenity,  and  I  would  apply 
the  law  that  pertains  to  that  question  should  I  have  the  oppor- 
tunity to  do  so. 

Senator  Grassley.  But  you  are  saying  that  obscenity  is  impos- 
sible to  define,  and  if  we  cannot  define  it  consistent  with  due  proc- 
ess, how  can  we,  in  your  judgment,  place  any  restrictions  on  it? 

Justice  Barkett.  Well,  the  Florida  Supreme  Court  has  done  it. 
In  defining  what  is  pornographic,  what  they  did  in  Stall  is  they 
added  some  language  which  said,  to  be  specific,  the  touching  of 
clothed  buttocks  is  pornographic.  And  as  we  all  can  imagine,  there 
are  lots  of  situations  in  which  one  touches  the  clothed  buttocks  of 
someone  that  is  absolutely  innocent.  If  this  statute 

The  Chairman.  Is  that  what  you  meant  by  a  lot  of  people  in  the 
Super  Bowl  would  be — 

Justice  Barkett.  Yes,  sir. 

The  Chairman.  Hell  of  a  lot  of  guys  I  played  ball  with  in  school 
would  be  in  trouble. 

Justice  Barkett.  And  I  think  that  when  one  attempts  to — there 
is  no  question  that  there  is  a  good-faith  effort  that  a  legislature  is 
attempting  to  define  that  which  is  prohibited  so  that  people  know. 
People  have  a  right  to  know  what  conduct  is  going  to  be 
criminalized,  and  there  certainly  is — you  can  describe  it.  You  can 
describe  pornography,  as  the  U.S.  Supreme  Court  has  said,  to  the 
extent — and  it  can  be  regulated.  It  can  be  prohibited.  But,  on  occa- 
sion, legislatures  go  further  and  invade  and  impinge  upon  some 
constitutional  principles  in  terms  of  passing  laws  that  are  ambigu- 
ous or  that  are  unclear  or  that  impinge  upon  some  other  constitu- 
tional aspects. 

I,  again,  have  to  ask  for  indulgence  in  terms  of  repeating  myself. 
I  do  not  think  it  is  fair  to  take  a  look  at  someone's  record  by  isolat- 
ing one  language  or  one  piece  of  work  rather  than  taking  a  look 
at  someone's  entire  judicial  career.  I  have  been  a  judge  since  1979. 
I  have  had  the  opportunity  to  serve  at  every  level  of  court,  and  I 
think  that  when  you  look  at  a  record  that  is  reflective  of  the  major- 
ity or  the  mainstream  of  courts  such  as  the  Florida  Supreme  Court, 


397 

I,  with  all  due  respect,  do  not  think  you  can  make  a  case  for  sug- 
gesting that  I  am  outside  of  the  mainstream. 

In  terms  of  the  ultimate  concern  that  you  raise,  Senator,  there 
is  no  question  that  obscenity  can  be  regulated,  that  the  U.S.  Su- 
preme Court  has  set  forth  the  parameters  of  that  regulation,  and 
that  every  Federal  judge  who  is  going  to  be  true  to  their  oath — and 
I  have  never,  to  my  knowledge,  violated  mine — would  follow  that 
Supreme  Court  precedent. 

Senator  Grassley.  You  are  talking  about  the  Miller  case? 

Justice  Barkett.  Yes,  sir. 

Senator  Grassley.  Well,  I  guess  that  would  have  been  my  last 
question.  If  approved  by  the  Senate,  and  if  you  sit  on  the  court, 
then  you  will  follow  the  precedents  of  that  court  and  uphold  State 
prohibitions  on  obscenity  that  satisfy  the  Miller  test? 

Justice  Barkett.  Yes,  sir,  of  course. 

Senator  Grassley.  This  may  be  going  over  ground,  but  I  want 
to  read  to  you  a  couple  sentences  that  you  should  explain,  because 
I  do  not  think  these  comport  with  what  you  just  said.  You  wrote, 
"A  basic  legal  problem  with  the  criminalization  of  obscenity  is  that 
it  cannot  be  defined.  Such  a  procedure  runs  counter  to  every  prin- 
ciple of  notice  and  due  process  in  our  society."  It  seems  to  me  that 
with  that  basic  philosophy,  it  is  going  to  be  hard  for  you  to  follow 
Miller.  You  seem  to  insert  your  own  views,  opposed  to  applying  the 
community  standards  analysis.  Basic  to  Miller  is  the  fact  that  we 
uphold  laws  prohibiting  material  violating  those  community  stand- 
ards as  long  as  the  material  has  no  literary,  artistic,  political,  or 
scientific  value,  or  no  appeal  exclusively  to  prurient  interests. 

Justice  Barkett.  I  am  sorry.  I  did  not — if  you  are  suggesting 

Senator  Grassley.  The  question 

Justice  Barkett.  I  will  not  have  any  problem  following  Federal 
law  when  I  am  required  and  if  I  am  required  to  follow  Federal  law. 
But  I  also  have  an  obligation  as  a  judge  in  the  State  court  system 
to  follow  the  State  Constitution  and  the  State  precedent  and  the 
State  law.  And  sometimes  they  may  differ,  Senator. 

Senator  Grassley.  And  you  showed  that  when  you  agreed  with 
Kogan,  and  went  along  with  him  on  his  dissent  when  he  was  find- 
ing fault  with  the  majority,  who  in  turn  were  or  were  agreeing  with 
the  U.S.  Supreme  Court  on  some  of  these  issues? 

Justice  Barkett.  Yes,  sir,  but  in  the  context  of  Florida  case  law 
and  Florida  constitutional  precedent. 

Senator  Grassley.  Mr.  Chairman,  I  am  done  with  obscenity. 

The  Chairman.  Thank  you  very  much. 

We  are  going  to  take  a  break  now  for  a  minute,  but  let  me  take 
just  a  minute  here  on  this,  and  then  we  will  break  for  lunch  and 
come  back  at  1:30.  Let's  make  sure  we  understand  what  the  tests 
are  in  the  Miller  case.  We  keep  referring  to  them.  One  is  whether 
the  material  appeals  to  the  prurient  interest  in  sex.  Two  is  whether 
the  material  portrays  sexual  conduct  in  a  patently  offensive  way. 
And,  three,  whether  the  work  taken  as  a  whole  lacks  serious  lit- 
erary, artistic,  political,  or  scientific  value.  All  three  of  those 
things. 

Justice  Barkett.  Yes,  sir. 

The  Chairman.  And  reasonable  people  can  have  and  do  and  will 
continue  to  disagree  on  what  they  are.  But  let  me  make  a  point 


398 

that  I  think  seems  to  be  continually  missed  here.  It  is  either  being 
missed  by  me  alone  or  everyone  else. 

My  understanding  is  that,  as  a  matter  of  basic  constitutional  law 
and  the  separation  of  powers  doctrine  and  the  notion  of  Federal- 
ism, taking  all  three  of  those  concepts,  that  if  the  State  of  Dela- 
ware or  the  State  of  Florida  wishes  to  be  more  expansive  in  its 
granting  of  a  recognition  of  rights  than  the  Federal  Constitution  is, 
it  is  permitted  to  do  so.  The  times  when  the  Federal  Constitution 
does  not  permit  a  State  to  do  such  a  thing  is  when  the  States  con- 
clude that  they  are  going  to  be  more  cabined  in  their  view  of  what 
it  is  a  person,  an  individual,  is  entitled  to  do  or  not  to  do. 

Case  in  point:  If  the  Florida  State  Legislature  wanted  to  say  that 
nude  dancing  was — or  it  was  written  in  the  Florida  Constitution 
that  nudity  on  public  beaches  is  constitutionally  protected  by  the 
State  of  Florida,  and  the  Supreme  Court  had  ruled  that  nudity  in 
public  places  violates — that  the  statute  written  by  the  U.S.  Con- 
gress saying  nudity  in  a  public  place  is  illegal,  and  if  the  Supreme 
Court  had  ruled  that  nudity  in  public  places  under  that  statute  is, 
in  fact,  obscenity,  you  could  still  have  nudity  on  public  beaches  in 
Florida  without  violating  the  Federal  Constitution.  Is  that  not  cor- 
rect? 

Justice  Barrett.  Yes,  sir. 

The  Chairman.  So  one  of  the  issues  here  is,  as  I  understand  it, 
you  believe  that,  among  other  things,  the  section  of  the  Florida 
Constitution,  I  might  add,  adopted  in  1980  by  the  people — this  is 
not  adopted,  you  know,  in  1880— by  the  people  of  the  State  of  Flor- 
ida, they  believed  more  along  the  lines  of  a  former  Justice  who 
used  the  phrase  which  is  oft  quoted,  "the  right  to  be  let  alone."  He 
had  defined  in  the  penumbra  of  the  Bill  of  Rights  that  right  to  be 
let  alone.  They  figured  the  heck  with  penumbras,  we  are  going  to 
write  it  into  our  Constitution.  And  it  says,  "Every  natural  person 
has  a  right  to  be  let  alone  and  free  from  Government  intrusion  to 
his  private  life  except  as  otherwise  provided  herein.  This  section 
shall  not  be  construed  to  limit  the  public's  right  to  access  to  public 
records  and  meetings  as  provided  by  law."  End  of  section. 

So  the  Florida  folks  said,  We  are  not  so  sure  we  are  going  to  let 
it  up  to  the  Supreme  Court  of  the  United  States  to  decide  whether 
we  have  rights  that  we  think  we  have  that  are  not  enumerated  in 
the  Constitution,  in  the  Federal  Constitution,  so  we  are  going  to 
make  it  real  clear. 

So  by  any  reading  of  the  Federal  Constitution  and  the  State  con- 
stitution, Florida's  Constitution  is  more  expansive.  How  much 
more?  No  one  knows.  But  it  is  clearly  more  expansive.  And  it  is 
that  part  of  your  rationale? 

Justice  Barrett.  That  is  precisely  correct.  Senator.  Under  my 
obligation  as  a  Supreme  Court  Justice,  it  includes  applying  the 
Florida  Constitution  to  Florida  citizens. 

The  Chairman.  You  have  no  idea  how  unusual  this  is  to  me. 
Never  did  I  think  when  I  was  in  Holy  Rosary  grade  school  I  would 
be  required  to  defend  a  nun  against  the  charge  she  was  soft  on  por- 
nography. [Laughter.] 

The  Chairman.  This  is  really  an  interesting  turn  of  events  for 
me.  A  former  nun,  I  might  add. 


399 

Let  me  say  we  will  now  recess  until — we  were  going  to  recon- 
vene— I  told  Senator  Hatch  that  we  would  reconvene  at  1:30  be- 
cause of  his  schedule,  but  since  we  have  gone  a  little  longer  than 
we  thought,  we  will  reconvene  with  the  permission  of  Senator 
Hatch  at  1:45. 

I  expect.  Justice  Barkett,  that  we  will  finish  this  afternoon  and 
that  Senator  Hatch  has  a  number  of  questions,  as  do  others.  I 
think  the  questions  you  have  been  asked  have  been  fair  questions 
so  far.  I  think  they  warrant  you  having  to  explain  them.  And  I  am 
sure  there  are  going  to  be  others. 

You  are  doing  a  fine  job.  Let's  just  keep  this  moving,  and  hope- 
fully we  can  finish  this  at  a  reasonable  hour  early  this  afternoon. 

Justice  Barkett.  Thank  you  very  much,  Senator. 

The  Chairman.  Thank  you. 

Justice  Barkett.  I  appreciate  it. 

The  Chairman.  We  are  in  recess  until  1:45. 

[Whereupon,  at  1:05  p.m.,  the  committee  recessed,  to  reconvene 
at  1:45  p.m.,  this  same  day.] 

afternoon  session 

Senator  Hatch.  Justice  Barkett,  why  don't  we  begin?  Senator 
Biden  just  said  let's  just  go  ahead  because  we  do  have  a  lot  of 
things  to  ask.  And  let  me  just  state  this  preliminarily.  If  you  need 
any  time  or  you  need  to  break  or  you  need  any  kind  of  a  break, 
just  let  me  know. 

Justice  Barkett.  I  will.  Thank  you  very  much,  Senator. 

Senator  Hatch.  Because  I  am  surely  going  to  honor  your  feel- 
ings. 

I  think  there  are  real  important  questions.  Let  me  just  say  that 
I  believe  that  the  rulings  on  issues  of  State  law  are  very  probative 
of  how  a  judge  will  rule  on  the  Federal  bench.  And  as  we  have  al- 
ready established,  appellate  judges  have  a  great  deal  of  discretion 
in  determining  whether  and  how  existing  precedent  applies.  And  as 
I  mentioned  before,  they  also  face  a  lot  of  cases  of  first  impression, 
and  it  seems  to  me  that  where  a  State  judge,  in  deciding  an  issue 
of  State  law,  has  expressed  disagreement  with  or  even  hostility  to 
a  U.S.  Supreme  Court  precedent,  one  can  expect  that  that  very 
same  judge  may  be  very  stingy  or  rather  stingy  in  applying  that 
precedent.  So  I  very  much  share  the  concerns,  for  example,  that 
Senator  Grassley  raised  over  your  views  on  obscenity.  They  worry 
him.  They  worry  me.  On  the  other  hand,  I  am  very  interested  in 
your  answers  as  well. 

I  had  been  mentioning  before  Senator  Simon  needed  to  take  the 
microphone  that  with  regard  to  the  LeCroy  decision — I  had  gone 
into  that — where  the  Supreme  Court  subsequently  rejected  the  po- 
sition you  took.  For  present  purposes,  however,  I  would  simply  like 
to  apply  the  methodology  of  your  Zrillic  opinion  to  the  position  that 
you  took  in  LeCroy. 

Appl3dng  that  Zrillic  methodology,  one  would  say  that  a  bright- 
line  age  minimum  of  18  is  both  under-inclusive  and  over-inclusive. 
It  is  under-inclusive  because  it  fails  to  protect  from  capital  punish- 
ment those  persons  over  18  who,  in  the  language  of  your  LeCroy 
dissent,  "have  not  fully  developed  the  ability  to  judge  or  consider 
the  consequence  of  their  behavior."  It  is  over-inclusive  because  it 


400 

does  protect  those  under  18  who  have,  in  fact,  fully  developed  their 
deliberative  faculties. 

Moreover,  your  Zrillic  methodology  would  appear  to  dictate  the 
conclusion  that  the  18-year  bright  line  is  simply  irrational  since  it 
would  exempt  from  the  death  penalty  a  heinous  murderer  who  was 
17  years,  11  months,  28  days,  at  the  time  of  his  or  her  ofTense,  but 
would  not  exempt  someone  who  was  a  few  days  older.  So  it  seems 
to  me  that  your  Zrillic  methodology  leads  to  the  conclusion  that 
what  you  thought  in  LeCroy  to  be  constitutionally  mandated  under 
the  eighth  amendment  is  instead  constitutional  impermissible 
under  the  equal  protection  clause. 

So  I  would  invite  any  comment  you  care  to  make  on  that,  but 
those  are  some  of  the  things  that  bother  me. 

Justice  Barkett.  Right,  Senator.  First  of  all,  the  Zrillic  meth- 
odology implies  that  I  somehow  used  equal  protection  as  the  focus 
on  Zrillic,  and  I  can  only  tell  you  that  that  is  really  not  at  all  the 
focus  which  concerned  me  in  Zrillic.  I  was  dealing  primarily  with 
the  property  issue. 

I  have  never  thought  about  the  equal  protection  analysis  in 
terms  of  the  death  penalty,  very  candidly,  and  I  am  not  sure  how 
it  would — I  mean,  I  do  not  think  there  is  any  question  that  it  has 
application  here,  so  I  do  not  make  the  connection. 

The  only  thing  I  would  add  to  that  would  be,  as  I  said  to  Senator 
Simon,  when  I  decided  LeCroy,  the  U.S.  Supreme  Court  had  de- 
cided only  Thompson,  which  drew  the  bright  line  at  16  years  old. 
Under  16  years  old,  you  could  not  execute  a  minor,  and  they  left 
open  the  question  of  the  18-year-old  situation.  I  determined  that  it 
would  be  a  violation  based  upon  the  analysis  that  I  utilized.  I  do 
not  think  there  is  any  question  that  I  would  apply  whatever  law 
the  U.S.  Supreme  Court  said  was  applicable,  should  I  have  the  op- 
portunity to  serve  on  the  eleventh  circuit. 

Senator  Hatch.  Well,  one  of  the  things  that  I  have  been  pointing 
out  is  I  am  concerned  that  you  will  invoke  over-broad  principles 
that  could  be  easily  manipulated,  and  naturally  I  think  you  would 
see  why  I  would  be  worried  about  that,  because  you  do  cite  the 
equal  protection  clause  of  the  Constitution  in  the  decision. 

Let  me  move  on.  My  concerns  over  how  your  opinions  have  ap- 
plied rational  basis  review  under  the  equal  protection  clause  are 
also  triggered  by  how  your  opinions  have  applied  rational  basis  re- 
view under  the  Federal  due  process  clause.  I  would  cite  the  case 
of  State  V.  Saiez,  which  was  in  1986.  In  that  case,  you  wrote  an 
opinion  for  the  Florida  Supreme  Court  holding  that  a  State  law 
criminalizing  the  possession  of  embossing  machines  capable  of 
counterfeiting  credit  cards,  to  use  your  language,  "violates  sub- 
stantive due  process  under  the  Fourteenth  Amendment  to  the  Unit- 
ed States  Constitution." 

Now,  specifically,  you  stated  that  the  law  was  "not  reasonably  re- 
lated to  achieving  the  legitimate  legislative  purpose"  of  curtailing 
credit  card  fraud.  And  in  your  words,  you  said,  "It  is  unreasonable 
to  criminalize  the  mere  possession  of  embossing  machines  when 
such  a  prohibition  clearly  interferes  with  the  legitimate  personal 
and  property  rights  of  a  number  of  individuals  who  use  embossing 
machines  in  their  businesses  and  for  other  non-criminal  activities." 


401 

Now,  I  would  like  to  focus  not  so  much  on  the  result  reached  in 
Saiez  as  on  the  principle  set  forth,  and  let  me  just  ask  this  ques- 
tion: Are  you  aware  of  any  Federal  authority  for  the  proposition 
that  criminalizing  ownership  of  an  item  violates  substantive  due 
process  if  that  item  has  legitimate  noncriminal  uses?  You  cited  no 
such  case  in  your  opinion,  but  are  you  aware  of  an3dhing? 

Justice  Barkett.  No,  Senator.  The  opinions  upon  which  I  relied, 
again,  were  Florida  cases,  and  I  can  only  cite  you  to  a  case  called 
Leoni,  which  meikes  it — that  was  a  case  where  the  State  attempted 
to  regulate  operations  of  a  drugstore  which  did  not  deal  with  the 
preparation  of  controlled  drugs  and  medical  suppliers.  And  the  lan- 
guage that  is  used  in  that  case — and,  again,  I  have  to  point  out 
that  due  process  concerns  in  Florida  are  different  than  Federal  due 
process  concerns.  The  language  in  this  case,  which  was  written  by 
one  of  our  Justices,  Justice  O'Connell,  way  before  I  ever  was  on  the 
bench  at  all,  I  think,  which  talks  in  terms  about  to  exercise  this 
power,  that  is,  the  police  power,  to  the  detriment  of  the  individual 
or  class,  it  must  first  be  clear  that  the  purpose  to  be  served  is  not 
merely  desirable  but  one  which  will  so  benefit  the  public  as  to  jus- 
tify interference  with  or  destruction  of  private  rights.  And  since 
that  time,  we  also  codified  the  Florida  Constitution. 

So  I  am  not  aware  of  the  same  analysis  being  applicable  under 
Federal  cases,  and  I  can  only  reiterate  to  you  my  view  that  when 
you  are  in  the  Federal  courts,  you  are  looking  only  at  Federal  anal- 
yses and  Federal  cases,  and  I  would  apply  that. 

Senator  Hatch.  You  say  you  applied  Federal  due  process  law  in 
this  particular  case? 

Justice  Barkett.  Well,  did  I  say  that?  My  only  point — and, 
again,  I  think  I  have  quoted 

Senator  Hatch.  Let  me  point  it  out  to  you  on  page  1127.  It  is 
the  second  paragraph  in  the  right  column.  I  have  to  get  my  glasses 
on.  I  am  having  a  rough  time  seeing  this.  "Although  Saiez's  over 
breadth  and  vagueness  challenges  fail,  section  817.63  is  neverthe- 
less unconstitutional.  It  violates  substantive  due  process  under  the 
fourteenth  amendment  to  the  United  States  Constitution  and  arti- 
cle I,  section  9,  of  the  Florida  Constitution." 

Justice  Barkett.  I  recognize  that,  Senator.  But  if  you  go  on  to 
look  at  the  language  that  is  used  from  other  cases,  they  are  all 
Florida  cases  which  have  utilized  the  same  phrase,  but  interpreted 
it  in  a  different  way. 

Senator  Hatch.  The  next  paragraph  down,  in  the  middle  of  it, 
it  says,  "the  due  process  clauses  of  our  Federal  and  State  constitu- 
tions." 

Justice  Barkett.  I  know. 

Senator  Hatch.  So,  as  you  can  see,  I  could  not  help  but  read  that 
and  wonder  why  you  would  do  that,  because  a  broad  range  of  crimi- 
nally proscribed  items  also  have  legitimate  uses.  For  instance, 
marijuana  can  be  prescribed  as  a  medicine.  Switchblades  can  be 
used  to  slice  apples.  Certain  drug  paraphernalia  can  be  used  for  to- 
bacco purposes.  Explosive  devices  can  be  used  to  build  tunnels. 

I  guess  the  question  is:  What  U.S.  Supreme  Court  authority  is 
there  for  concluding  that  society,  through  its  elected  officials,  lacks 
the  power  to  determine  that  the  harmful  effects  of  some  or  all  of 


402 

these  so  outweigh  the  beneficial  effects  that  possession  should  be 
criminalized? 

Justice  Barkett.  I  understand  that  in  the  Federal  context  you 
would  not  be  making  that  analysis,  Senator,  but  in  the  Florida  con- 
text you  would. 

Senator  Hatch.  You  could  do  that. 

Justice  Barkett.  You  would  be  required  to,  and  we  did,  and  I 
think  that  opinion  was  unanimous,  or  at  least  nearly  so,  if  I  am 
not  mistaken. 

Senator  Hatch.  Well,  I  wonder  even  under  the  Florida  context, 
because  I  see  no  reason  why  the  principle  stated  in  your  Saiez 
opinion  would  not  apply  with  full  force  to  all  of  those  examples  that 
I  just  went  through.  I  could  add,  in  my  view,  that  the  issue  is  not 
the  substantive  wisdom  of  any  given  State  law.  I  may  agree  or  dis- 
agree with  that,  just  as  you  may.  The  issue  is  what  branch  of  gov- 
ernment should  have  the  power  to  make  those  decisions.  And  legis- 
lators may  make  from  time  to  time  what  some,  including  you  and 
I,  consider  unwise  decisions.  But  unless  those  choices  contradict 
the  Constitution,  their  constituents,  not  judges,  ought  to  make  the 
final  determination  as  to  whether  or  not  they  continue.  And  they 
ought  to  be  the  check  on  such  laws  if  they  are  wrong. 

The  substantive  due  process  theory  is  just  another  tool  for  judges 
to  override  the  legislative  process  if  they  want  to  and  override  leg- 
islative choices.  So  I  am  concerned  that  an  over-broad  use  of  that 
principle  can  be  applied  selectively,  reflecting  the  preferences  of 
judges  reviewing  the  law  acting  as  a  kind  of  super-legislature.  And 
that  worries  a  lot  of  people  up  here,  including  me. 

Justice  Barkett.  Well,  I  think.  Senator,  in  terms  of  the  general 
principle  of  courts  acting  as  legislators  and  providing  any  lack  that 
they  might  find  in  the  statute,  I  have  made  myself  fairly  clear  over 
my  career,  suggesting  that  I  do  not  think  that  that  is  appropriate. 

In  terms  of  Saiez,  I  can  only  suggest  that  you  look  at  the  cases 
upon  which  I  relied,  which  express  the  same  principle  that  I  under- 
stand you  are  having  difficulty  with,  because  it  is  different  than 
the  Federal  standards.  But  in  Delmonico  v.  State,  the  court  de- 
clared a  statute  that  prohibited  the  possession  of  spear-fishing 
equipment  in  an  area  of  Monroe  County  to  be  unconstitutional  and 
explained  that  it  included  that  same  principle.  In  Robinson  v. 
State,  a  statute  that  prohibited  the  wearing  of  any  mask  or  cover- 
ing whereby  any  portion  of  the  face  is  hidden,  concealed,  and  so 
forth,  to  be  unreasonable. 

Although  the  terms,  the  phrases  that  are  used,  may  be  the  same 
in  both  bodies  of  law,  the  meanings  that  is  ascribed  to  them  are 
very  different. 

Senator  Hatch.  Well,  the  question  that  naturally  arises  is:  Why, 
then,  didn't  you  apply  just  the  State  due  process  law  and  not  apply 
the  Federal  due  process? 

Justice  Barkett.  I  think  in  essence  I  did.  Senator,  and  all  I 
can — I  mean,  I  can  certainly  accept  that  in  a  body  of  law  there  are 
going  to  be  occasions  when  you  are  going  to  be  careless,  but  I 
think 

Senator  Hatch.  Oversight. 

Justice  Barkett  [continuing].  That  there  is  no  question  that 
when  you  look  at  the  cases  upon  which  this  one  relied  and  upon 


403 

the  language  which  is  quoted  from  other  Florida  cases,  it  was  clear- 
ly from  that  perspective  that  I  was  acting. 

Senator  Hatch.  All  right.  In  Florida  Society  of  Ophthalmology  v. 
Florida  Optometric  Association,  you  stated,  "Constitutions  are  'liv- 
ing documents,'  not  easily  amended,  which  demand  greater  flexibil- 
ity in  interpretation  than  that  required  by  legislatively  enacted 
statutes.  Consequently,  courts  are  far  less  circumscribed  in  con- 
struing langauge  in  the  area  of  constitutional  interpretation  than 
in  the  realm  of  statutory  construction." 

Now,  do  you  believe  that  courts  should  be  "far  less  circumscribed 
in  construing"  constitutional  language,  irrespective  of  whether  the 
result  is  to  create  or  deny  new  rights? 

Justice  Barrett.  I  think  the  point  that  I  was  trying  to  make 
there  is  there  is  a  slightly  different  way  of  interpreting  statutes, 
the  plain  language  of  statutes,  and  in  interpreting  the  plain  lan- 
guage of  a  constitution.  In  a  statute,  Congress  or  the  legislature  is 
fairly  specific  and  deals  with,  in  essence,  one  concept,  one  sentence, 
one  provision  at  a  time.  In  constitutions,  the  language  is  extremely 
broad,  and  although  it  is  a  rule  of  statutory  construction  that  you 
stop  at  the  plain  meaning  of  a  statute,  what  I  was  suggesting  in 
the  case  that  you  referred  to  is  that  when  you  are  looking  at  con- 
stitutions, you  have  to  look  at  the  intent  of  the  entire  document 
more  so  than  trying  to  attempt  to  do  that  in  statutes. 

For  example,  if  you  suggested  that  the  same  rule  of  statutory 
construction — that  is,  that  you  would  only  apply  the  literal  letter 
of  a  constitution,  you  would  then  have  to  say  that  Congress  could 
make  no  law  affecting  religion  or  rights  of  free  speech  and  so  forth 
or  that  a  right  to  trial  by  jury  would  mean  that  you  must  have  a 
jury  in  every  single  case.  And  I  think  what  occurred  when  the  Su- 
preme Court  was  looking  at  those  cases  and  what  I  was  referring 
to  is  that  you  take  a  look  at  the  intent  of  the  entire  document  more 
so  than  you  do  in  the  legislative,  specific,  narrow  language  that  is 
being  used  in  one  portion  of  a  statute,  where  the  legislature  has 
the  opportunity  to  come  back  and  correct  it. 

So  circumscribe  less  only  in  the  sense  that  you  take  a  look  at  the 
intent  of  the  framers  of  the  document  as  opposed  to  simply  stop- 
ping with  an  inquiry  of  the  language  if  the  language  gives  you  an 
indication  that  this  is  not  what  the  framers  intended.  You  have  to 
look  at  it  in  conjunction  with  the  other  provisions  of  the  constitu- 
tion. 

The  Chairman.  Will  the  Senator  yield  for  a  question? 

Senator  Hatch.  Sure. 

The  Chairman.  Were  you  in  a  minority  in  both  these  cases? 

Justice  Barrett.  No,  sir.  I  think  Florida  Society  of  Ophthalmol- 
ogy was  a  majority,  or  almost. 

The  Chairman.  Was  it  5  to  2,  you  wrote  the  majority  opinion? 

Justice  Barrett.  Yes. 

The  Chairman.  Five  agreed  with  you. 

Justice  Barrett.  Yes,  sir. 

The  Chairman.  And  in  the  Saiez  case  it  was  7  to  0? 

Justice  Barrett.  I  believe  that  is  correct. 

The  Chairman.  Thank  you. 


404 

Senator  Hatch.  Well,  I  do  not  know  the  other  members  of  the 
Florida  Supreme  Court,  and  I  have  not  studied  their  jurisprudence. 
I  have  to  go  by  the  reasoning  of  the  opinions  that 

The  Chairman.  I  am  not  being  critical.  I  just  want  the  record  to 
reflect 

Senator  Hatch.  No,  no,  but  I  just  want  to  make  this  point.  I 
know  you  are  not.  I  have  to  go  by  the  reasoning  that  you  have  au- 
thored, and  to  a  certain  extent  the  opinions  you  have  joined.  What 
I  want  to  know,  really,  in  this  discussion  is  whether  your  judicial 
interpretations  of  Federal  questions  are  consistent  with  applicable 
Federal  precedent.  And  if  a  State  court  opinion  misreads  or  mis- 
uses the  Federal  equal  protection  clause  and  ignores  or  misapplies 
principles  that  are  enunciated  in  U.S.  Supreme  Court  decisions,  I 
do  not  think  it  makes  any  difference  how  many  judges  join  in  the 
opinion.  That  is  the  point.  They  would  all  be  wrong  in  that  situa- 
tion. 

Frankly,  a  nominee  could  be  a  lone  dissenter  in  a  State  court 
case  and  have  the  best  reasoned  opinion  in  that  case.  Conversely, 
a  nominee  might  author  or  join  in  the  unanimous  opinion,  and  that 
could  be  one  of  the  worst  opinions  ever  rendered.  And  I  have  seen 
some  of  those,  too,  as  have  you,  I  am  sure.  And  I  will  cite  Plessy 
V.  Ferguson  as  a  perfect  illustration  of  a  case  which  upheld  the  odi- 
ous separate-but-equal  doctrine  under  the  equal  protection  clause, 
and  that  was  a  7-to-l  decision.  So  that  does  not  particularly  mean 
anything,  and  I  do  not  think  anyone  on  this  committee  would  sug- 
gest that  a  nominee  who  wrote  the  opinion  or  voted  in  the  majority 
in  a  case  like  that,  you  know,  would  take  refuge  behind  the  other 
seven  people. 

So  these  questions  go  a  lot  more  to  the  way  you  judge  than  they 
do  to  the  final  results  in  some  of  these  cases.  And  as  I  see  it,  a  key 
premise  of  your  provision  is  that  Constitutions  are  not  easily 
amended.  And  in  my  view,  this  critical  fact  clearly  counsels  strong- 
ly against,  not  in  favor  of,  judicial  adventurism  in  creating  new 
rights. 

Justice  Barrett.  Well,  I  think  I  am  not  suggesting.  Senator,  that 
one  goes  outside  of  the  document  or  that  one  superimposes  one's 
own  views  on  this.  I  think  that  the  issue  here  is  a  very  technical 
question  of  whether  or  not — what  the  requirements  were  of  a  pro- 
cedure in  the  Florida  Legislature.  The  language,  the  specific  lan- 
guage in  and  of  itself,  might  have  dictated  one  result.  But  when 
one  read  it  in  conjunction  with  other  provisions  of  the  constitution, 
which  one  may  do,  under  that  theory  of  constitutional  interpreta- 
tion, in  order  to  ascertain  the  true  meaning  of  the  framers  with  re- 
gard to  that  provision,  then  that  is  permissible.  As  opposed  to  in 
statutory  construction,  if  you  are  taking  a  look  at  one  subjective 
line  or  two  in  a  subsection  of  a  statute,  one  need  not  refer  to  the 
whole  body  of  all  of  the  congressional  acts  in  order  to  obtain  mean- 
ing from  it.  One  stops  at  the  language  of  that  law.  That  is  the  only 
thing  I  was  trying  to  point  out  there. 

Senator  Hatch.  Well,  the  genius  of  the  Constitution,  what  makes 
it  a  living  document  is  not  that  its  meaning  is  to  be  judicially  al- 
tered over  time,  but,  rather,  that  it  gives  broad  play  to  the  political 
forces  to  address  the  great  and  the  maybe  not  so  great  issues  of 
the  day.  That  is  I  guess  the  point  I  am  trying  to  get  to. 


405 

Let  me  just  address  some  of  your  fourth  amendment  decisions  in- 
volving drugs.  Let  me  turn  to  Bostick  v.  State,  if  you  have  that 
handy.  That  is  a  decision  where  you  wrote  for  a  4-3  majority  on 
the  court,  and,  of  course,  this  decision  was  overturned  by  the  U.S. 
Supreme  Court. 

In  that  case,  two  officers  boarded  a  bus  bound  from  Miami  to  At- 
lanta at  a  stopover  in  Fort  Lauderdale.  They  explained  they  were 
looking  for  illegal  drugs  and  asked  Bostick  to  consent  to  a  search 
of  his  luggage.  And  as  you  noted  in  your  opinion,  the  trial  judge 
found  that  Bostick  did  consent,  that  the  illegal  drugs  were  found. 

Now,  in  your  opinion,  you  created  a  per  se,  across-the-board  rule 
that  the  police  practice  of  boarding  buses  during  scheduled  stops 
and  questioning  passengers  was  unconstitutional,  and  that  any 
consent  obtained  therefrom  was,  therefore,  void. 

Now,  the  U.S.  Supreme  Court  ruled  that  the  adoption  of  this 
rigid  per  se  rule  was  inconsistent  with  Supreme  Court  precedent, 
which  requires  that  whether  or  not  consent  was  valid  be  deter- 
mined under  the  totality  of  the  circumstances.  And  that  was  the 
Schneckloth  v.  Bustamonte  case  in  1973. 

Now,  the  Supreme  Court  rejected  your  per  se  rule.  Why  did  you 
not  find  this  precedent  dispositive  and  apply  this  totality  of  the  cir- 
cumstances test  in  the  first  place? 

Justice  Barkett.  Senator,  the  U.S.  Supreme  Court  determined  in 
Bostick — search  and  seizure  I  think  is  one  of  the  most  difficult 
areas  of  the  law. 

Senator  Hatch.  It  is. 

Justice  Barkett.  And  one  which  all  courts,  including  the  U.S. 
Supreme  Court,  have  grappled  with.  They  made  a  determination. 
They  interpreted  our  opinion  in  Bostick  to  say  that  any  kind  of  a 
request  for  a  consensual  search  on  a  bus  was  per  se  violative  of  the 
fourth  amendment.  They  then  returned  it  to  us,  saying  look  at  this 
again  in  light  of  the  totality  of  the  circumstances. 

I  then  looked  at  it  from  the  perspective  of  the  totality  of  the  cir- 
cumstances, and  finding  no  dispute  as  to  the  circumstances  in 
question,  would  have  found  as  a  matter  of  law,  not  because  it  was 
a  bus  but  because  of  all  of  the  totality  of  the  circumstances,  that 
it  violated  the  search  and  seizure  provisions  in  terms  of  being  a  co- 
ercive request  for  consent. 

Senator  Hatch.  But  on  remand  from  the  U.S.  Supreme  Court, 
the  Florida  Supreme  Court  finally  ruled  that  the  search  in  that 
case  was  lawful. 

Justice  Barkett.  Yes. 

Senator  Hatch.  But  you  still  did  not  agree,  and  you  dissented  in 
the  second  decision.  In  your  original  opinion,  you  made  the  follow- 
ing comment: 

The  intrusion  upon  privac  rights  caused  by  the  Broward  County  policy  is  too  great 
for  a  democracy  to  sustain.  Without  doubt,  the  inherently  transient  nature  of  drug 
courier  activity  presents  difficult  law  enforcement  problems.  Roving  patrols,  random 
sweeps,  and  arbitrary  searches  or  seizures  would  go  far  to  eliminate  such  crime  in 
this  State.  Nazi  German,  Soviet  Russia,  and  Communist  Cuba  have  demonstrated 
all  too  tellingly  the  effectiveness  of  such  methods. 

Now,  I  agree  that  the  fourth  amendment  is  the  bulwark  of  our 
liberties  and  that  there  are  certain  police  tactics  that  cannot  be  tol- 
erated in  our  free  society.  But  do  you  really  believe  that  what  the 


406 

two  officers  did  here  in  this  particular  case,  identifying  themselves 
and  asking  for  consent  to  search  the  luggage  of  a  bus  passenger 
rather  than  just  taking  the  luggage  and  opening  it  or  dragging  the 
passenger  off  the  bus,  ought  to  have  been  compared  to  Nazi  Ger- 
many, Soviet  Russia,  or  Communist  Cuba? 

Justice  Barkett.  Senator,  I  would  never  compare  the  conduct  of 
any  of  our  police  officers  in  this  country  to  those  of  Nazi  Grermany 
or  Soviet  Russia,  and  I  do  not  think  there  is  any  question  but  that 
had  I  made  such  a  comparison,  I  would  not  have  received  the  sup- 
port of  many  of  the  rank-and-file  officers  in  my  State. 

I  think  it  is  clear  that  they  are  placed  in  an  inordinately  difficult 
position  in  terms  of  understanding  what  the  law  is  and  what  the 
law  is  not. 

In  our  democratic  system,  we,  of  course,  as  a  free  society  value 
and  have  always  valued  the  ability  to  walk  freely  in  the  streets, 
unless  we  have  forfeited  that  right  by  virtue  of  doing  something 
which  violates  the  law  or  giving  a  police  officer  a  reasonable  basis 
to  believe  that  we  might  have  violated  the  law  or  probable  cause 
to  arrest  us  for  having  violated  the  law. 

The  bus  situation  was  one  in  which  the  State  concededly  said 
there  was  absolutely  no  reasonable  suspicion  and  no  probable  cause 
to  stop  and  inquire  of  any  of  these  passengers.  My  understanding 
of  the  U.S.  Supreme  Court's  precedent  is  that  one  can  do  that  if 
one  does  it  in  a  context  in  which  the  person  feels  free  to  not  re- 
spond or  to  say,  "I  do  not  want  to  have  a  conversation  with  you." 
And  one  must  look  at  the  circumstances  of  the  case  in  order  to  de- 
termine whether  or  not  that  citizen  felt  free. 

We  are  not  talking  about  a  situation  where  there  might  have 
been  reasonable  suspicion  to  believe  that  a  crime  had  been  commit- 
ted. 

Under  the  totality  of  these  circumstances,  in  the  crowded  bus 
and  the  fact  that  there  was  only  a  short  stop  and  the  fact  that 
these  police  officers  were  wearing  their  uniforms,  had  a  gun  very 
visible  in  their  pouch  and  so  forth,  as  delineated  by  Judge  Letz 
below,  it  seemed  to  me  that  the  Mendenhall  standard  would  have 
dictated  that  this  was  a  coercive  situation. 

Granted,  the  Supreme  Court  has  ruled  as  it  has.  I  would  apply 
that.  I  think  under  the  circumstances  here,  as  a  matter  of  law, 
since  there  was  no  debate  about  the  circumstances  as  a  matter  of 
law,  the  fourth  amendment  was  violated.  That  is  what  they  sent 
it  back  for  us  to  do,  in  my  judgment. 

Senator  Hatch.  Well,  my  only  problem  was  you  used  that  lan- 
guage, and  I  have  to  say  that  nobody  is  immune  from  using  injudi- 
cious language  from  time  to  time.  Why,  even  Senator  Biden  and 
myself  have  been  known  to  do  that  from  time  to  time. 

The  Chairman.  Once,  once. 

Senator  Hatch.  Only  once  for  him.  In  my  case,  I  am  sure  a  num- 
ber of  times.  But  you  can  see  why,  you  know,  some  police  people 
would  be  upset  with  that  kind  of  language.  Go  ahead. 

Justice  Barkett.  Senator,  this  was  an  issue  that  was  raised  dur- 
ing my  merit  retention  campaign.  Fortunately  for  me,  many  mem- 
bers of  the  police  department  took  the  time  to  sit  down  with  me, 
to  read  the  case  themselves,  and  to  come  to  the  conclusion  that  in 
no  way  was  I  attempting  to  impugn  or  hold  in  any  less  respect 


407 

than  people  in  my  State  know  I  hold  the  police.  As  a  result  of  that 
meeting,  as  a  result  of  taking  the  time  to  read  all  of  my  cases,  I 
had  the  support  of  the  Police  Benevolent  Association  and  many  po- 
lice officers  who  helped  me  during  my  campaign.  I  think  the  ones 
in  my  State 

The  Chairman.  The  FOP  endorsed  you,  didn't  they? 

Justice  Barkett.  I  am  sorry. 

The  Chairman.  Did  the  FOP  endorse  you? 

Justice  Barkett.  Yes,  they  did  during  my — and  we  had  the  same 
kinds  of  meetings,  Senator. 

The  Chairman.  And  the  National  Association  of  Police  Organiza- 
tions supports  you  now;  correct? 

Justice  Barkett.  Yes,  sir.  And  I  think  that  the  police  officers  in 
my  State  know  that  I  have  nothing  but  the  highest  regard  for 
them.  They  have  a  very  difficult  job  to  do.  They  are  treated  very 
badly,  not  only  by  criminals  but  by  many  members  of  our  society 
who  do  not  take  adequate  care  of  them  in  many  regards.  I  value 
them.  I  value  their  input.  In  my  administrative  capacity,  I  have  al- 
ways sought  their  advice  and  have  conferred  with  them  in  a  myr- 
iad of  different  ways  simply  because  I  think  they  have  a  great 
stake  in  our  court  system  and  they  should  be  consulted.  And  I  do 
not  think  there  is  any  question  by  many  of  the  members  of  the  po- 
lice in  my  State  that  I  hold  them  in  such  high  regard. 

What  I  was  trying  to  point  out  was  that  if  you  leave  it  unfettered 
discretion  and  give  absolute  power,  without  guidance,  the  result  is 
what  we  have  seen  in  totalitarian  countries.  I  had  no  intentions  of 
even  comparing  them  in  specifics  to  that. 

Senator  Hatch.  All  right.  In  the  recent  case  called 
Sarantopolous,  two  police  officers  received  an  anonymous  tip  that 
Sarantopolous  was  growing  marijuana  in  his  back  yard.  I  think 
this  one  was  raised  with  you,  but  maybe  I  am  wrong.  The  two  offi- 
cers entered  a  neighbor's  yard,  and  one  of  the  officers,  standing  on 
his  tiptoes,  looked  over  a  6-foot  tall  wood  fence  and  spotted  mari- 
juana plants. 

The  police  then  went  and  got  a  search  warrant,  and  they  ar- 
rested Sarantopolous,  and  by  a  5-to-2  vote,  your  court  ruled  that 
the  search  was  lawful.  The  majority  said  that  Sarantopolous  lacked 
a  reasonable  expectation  of  privacy  in  his  back  yard  since  it  was 
protected  from  view  only  from  those  who  remained  on  the  ground 
and  who  were  unable  to  see  over  the  6-foot  fence. 

Now,  you,  in  dissent,  said, 

I  cannot  believe  that  American  citizens  sitting  on  porches  or  in  their  back  yards 
are  not  constitutionally  protected  when  Government  agents,  acting  only  an  anony- 
mous tip,  climb  on  ladders  or  stretch  tiptoes  to  peer  over  privacy  fences. 

Now,  the  question  I  ask  is:  Isn't  it  a  settled  standard  under  the 
fourth  amendment  that  whether  a  search  is  constitutional  turns 
not  only  on  whether  a  person  has  manifested  a  subjective  expecta- 
tion of  privacy,  but  whether  or  not  that  expectation  of  privacy  is 
reasonable? 

Justice  Barkett.  Yes.  I  think. 

Senator  Hatch.  And  I  think 

Justice  Barkett.  Was  that  the — I  am  sorry.  I  didn't  know  wheth- 
er that  was  the  end  of  the  question  or  not. 


408 

Senator  Hatch.  No,  I  think  you  answered  it  right.  That  was  the 
question.  You  answered  it  right. 

The  Chairman.  But  the  issue  is,  isn't  it  what  is  a  reasonable  ex- 
pectation? 

Senator  Hatch.  That  is  right.  That  is  what  the  issue  is. 

Now,  whil